October 1, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JESUS MARTINEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-04-0361-I, 01-06-0667-I, 02-11-1388-I, 03-01-0024-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Winkelstein and LeWinn.
On June 28, 2001, a Passaic County Grand Jury issued Indictment No. 01-06-0667, which charged defendant, Jesus Martinez, with the following: third-degree terroristic threats against Maria Ortiz and Jacqueline Martinez, N.J.S.A. 2C:12-3a and N.J.S.A. 2C:12-3b (count one); fourth-degree contempt of court by violating a temporary restraining order, N.J.S.A. 2C:29-9b (count two); third-degree terroristic threats against Sonaly Diaz and Maria Ortiz, N.J.S.A. 2C:12-3a and N.J.S.A. 2C:12-3b (count three); fourth-degree contempt of court by violating a temporary restraining order, N.J.S.A. 2C:29-9b (count four); third-degree terroristic threats against Maria Ortiz, N.J.S.A. 2C:12-3a and N.J.S.A. 2C:12-3b (count five); third-degree possession of a weapon, a sharp instrument, for an unlawful purpose, N.J.S.A. 2C:39-4d (count six); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count seven).
Defendant was tried on those charges from October 8 through October 10, 2002. The court granted defendant's motion for acquittal on the portion of count one pertaining to terroristic threats against Martinez and on the portion of count three pertaining to terroristic threats against Ortiz. The jury convicted defendant of count three, terroristic threats against Diaz, and acquitted him of the remaining charges. The court dismissed the contempt charges upon the prosecutor's motion in counts two and four.
On January 10, 2003, before defendant was sentenced on those convictions, he entered a consolidated plea to other outstanding charges. Indictment No. 01-04-0361 charged him with first-degree robbery (counts one and two); second-degree burglary (count three); and third-degree possession of a weapon for an unlawful purpose (count four). Indictment No. 02-11-1388 charged him with first-degree attempted murder (count one); second-degree aggravated assault (count two); and possession of a weapon for an unlawful purpose (count three). Accusation No. 03-01-0024 charged defendant with second-degree sexual assault. Pursuant to the plea agreement, he pleaded guilty to robbery, count two of Indictment No. 01-04-0361, aggravated assault, count two of Indictment No. 02-11-1388, and sexual assault, Accusation No. 03-01-0024.
The plea agreement called for a prison term of eighteen years with an eighty-five percent period of parole ineligibility for the first-degree robbery conviction, and lesser, concurrent terms on the remaining charges.*fn1 As part of the plea agreement, defendant would receive a concurrent five-year prison term, with two and one-half years of parole ineligibility, on the third-degree terroristic threat conviction. The State agreed to dismiss all remaining charges.
At the sentencing hearing on April 10, 2003, the judge imposed sentences in accordance with the plea agreement. Consequently, defendant's total sentence was eighteen years with an eighty-five percent period of parole ineligibility.
On appeal, defendant raises four legal arguments with regard to the jury trial and attacks the length of his sentence. Specifically, he raises the following points:
POINT I - POLICE OFFICER IURATO'S TESTIMONY THAT HE SPOKE WITH "MR. MARTINEZ" ON THE TELEPHONE CONSTITUTED AN IMPROPER "NET OPINION" AND OFFICER IURATO'S TESTIMONY CONCERNING THE SUBSTANCE OF THE STATEMENT PURPORTEDLY MADE BY THE DEFENDANT CONSTITUTED PLAIN ERROR (NOT RAISED BELOW). POINT II - TESTIMONY THAT THE DEFENDANT WAS IN JAIL CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
POINT III - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW). POINT IV - THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY CHARGE (NOT RAISED BELOW). POINT V - IMPOSITION OF BASE CUSTODIAL SENTENCES THAT EXCEEDED THE THEN-EXISTING PRESUMPTIVE SENTENCE OF 15 YEARS FOR A CRIME OF THE FIRST DEGREE, 7 YEARS FOR A CRIME OF THE SECOND DEGREE, AND 4 YEARS FOR A CRIME OF THE THIRD DEGREE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
We have carefully considered defendant's arguments in light of the record and applicable law. We agree with defendant's argument in point three that his right to a fair trial was prejudiced by comments made by the prosecutor in summation. We therefore reverse defendant's conviction for terroristic threats under Indictment No. 01-06-0667. Given that determination, points two and four of defendant's brief are moot, as those issues may not arise on retrial. We do, however, address point one of defendant's brief, and in so doing, find no merit to defendant's argument. We also find no merit to defendant's argument in point five of his brief, that the custodial terms imposed by the court violated defendant's constitutional rights under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004) or State v. Natale, 184 N.J. 458 (2005), or are otherwise excessive. Nevertheless, because the plea agreement included the proposed sentence for the terroristic threats conviction, we remand for resentencing.
We begin with the evidence elicited during defendant's trial under Indictment No. 01-06-0667. Sonaly Diaz testified that on December 19, 2000, she was in her apartment on Park Avenue in Paterson with her son, her friend Maria Ortiz, Ortiz's children, and defendant's niece, Jacqueline Martinez. Diaz had dated defendant for two months, but the two were no longer together.
On that date, she heard loud banging on the door. Martinez held the door while Ortiz took the three children into the bathroom. Diaz dialed 911. She "knew it was [defendant]" at the door; she was "screaming and telling him to stay away from the door."
Diaz went into the hallway and spoke to defendant, who begged her to "go back with him." After she told him that she did not want to be with him anymore, he pointed a screwdriver at her stomach and told her that if she was "not his woman, [she was] nobody's woman." Diaz told defendant, "Kill me. If you want to kill me, do it." At that point, defendant left. Diaz went back inside the apartment, where she began receiving telephone calls from defendant.
Paterson police officer Salvatore Iurato responded to Diaz's 911 call. Diaz told him what had happened and that defendant had been calling her. While Iurato was there, Diaz received a telephone call; she answered it, handed the phone to Iurato and told him defendant was calling. Iurato testified that he told defendant that he was a police officer and defendant should turn himself in. According to Iurato, defendant responded that he "didn't give a fuck about the police," and he "didn't care if he died."
On direct examination, in response to the prosecutor's question of how long she had known defendant, Ortiz testified that she had known defendant for "six or seven months" and that she had met him "when he came out of jail." Counsel for defendant did not object to Ortiz's remarks.
Ortiz said that on December 16, 2000, while she was at Diaz's apartment, she received a telephone call from defendant. He told her that "he was going to come and get [her] and that he was going to kill [her]." She was at Diaz's apartment on the day defendant banged on the door; however, she stayed in the bathroom with the children during the incident and did not hear defendant's conversation with Diaz.
She said that on December 22, 2000, she encountered defendant at a bar. He approached her and said, "I should kill you right now that you're here." She saw "something sharp" in his hand but he did not brandish it at her. After Martinez got between them and began arguing with defendant, he left the bar.
On summation, the prosecutor made the following challenged comments:
But you talk about circumstantial evidence, you talk about corroboration, [Diaz] said [that defendant] blacked out. That's her term for going crazy, okay? He was wild, he was saying these things.
What corroborates that? Well, the police are called. I mean, here [are] two young girls, they keep calling the police to come out and take these reports because nothing is happening? Maybe you want to believe that. Maybe they have a reason to fabricate, okay? . . .
[Diaz is] the one who ended the relationship. She's got nothing to hold against him or to try to get him back so why she would fabricate, I don't know.
But [defense counsel] said you would like some stranger, someone removed from this to come in and give you the circumstantial evidence, corroborate this. Well, who does that? Officer Iurato. Because he gets on the phone, and I mean, is it coincidence [defendant] just has this altercation with her, this argument, he leaves the house, he calls her up and while she's there, she picks up the phone and says, Officer, here, gives him the phone. And what happens? All the officer says is I'm a police officer, I think you should turn yourself in. You are on the other end of a phone and a police officer says I'm a police officer, I think you should turn yourself in. Turn myself in? For what? What did I do? I didn't do anything. What are you talking about? That's what you would expect.
But someone who has blacked out, someone who is crazy says I don't give a fuck about the police, I don't care if I die.
I don't care if I die? What would elicit that response? A crazed man who just had an altercation with his girlfriend, that's what would elicit that response.
That's your circumstantial evidence. That's your corroboration. That's your support. [emphasis added.]
Defense counsel did not object to the prosecutor's remarks.
Against this factual background, we first address defendant's claim that he was prejudiced by the prosecutor's comments in summation with regard to defendant's pre-arrest silence. Because at trial defendant did not object to those comments, we review them under the plain error standard. R. 2:10-2 (error shall be disregarded by appellate court unless clearly capable of producing unjust result); State v. Macon, 57 N.J. 325, 333 (1971). Defendant, who did not testify at trial, asserts that the summation deprived him of his Fifth Amendment right to remain silent by drawing adverse inferences from his failure to give police exculpatory evidence. We agree.
As noted, the prosecutor included the following remarks in his closing:
All the officer says is I'm a police officer, I think you should turn yourself in. You are on the other end of a phone and a police officer says I'm a police officer, I think you should turn yourself in. Turn myself in? For what? What did I do? I didn't do anything. What are you talking about? That's what you would expect.
In general, "a prosecutor is limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom."
State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958). A prosecutor is nevertheless permitted to make a "vigorous and forceful presentation of the State's case." Ibid.
Even if a prosecutor oversteps his or her bounds, prosecutorial misconduct will not serve as a basis for reversal unless it was so egregious as to deprive the defendant of a fair trial. State v. Feaster, 156 N.J. 1, 59 (1998), cert. denied, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). The prosecutor's conduct must have been "clearly and unmistakably improper, and must have substantially prejudiced [the] defendant's fundamental right to have a jury fairly evaluate the merits of his . . . defense." State v. Nelson, 173 N.J. 417, 460 (2002) (internal quotation omitted). A reviewing court must assess a prosecutor's comments in the context of the entire trial record. Id. at 472; State v. Ramseur, 106 N.J. 123, 323 (1987).
New Jersey's privilege against self-incrimination, though not delineated in the State Constitution, is "deeply rooted in this State's common law and codified in both statute and an evidence rule." State v. Muhammad, 182 N.J. 551, 567 (2005); N.J.S.A. 2A:84A-19 (subject to exceptions, "every . . . person has a right to refuse to disclose . . . to a police officer . . . any matter that will incriminate him"); N.J.R.E. 503 (same).
A defendant in a criminal case is not obligated "to provide information to assist the State in its prosecution of him." State v. Black, 380 N.J. Super. 581, 594 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). The practical effect of the privilege to remain silent is that comments regarding a defendant's silence may not be made to the jury implying acquiescence by silence, nor may the prosecution comment on a defendant's silence. Id. at 593 (citing State v. Deatore, 70 N.J. 100, 115 (1976). "'[T]he right of . . . a suspect to remain silent when in police custody or under investigation has always been a fundamental aspect of the privilege in this state.'" Muhammad, supra, 182 N.J. at 567 (quoting Deatore, supra, 70 N.J. at 114).
When a defendant testifies, New Jersey permits the limited use of pre-arrest silence for purposes of impeaching a defendant, provided that "no governmental compulsion is involved." State v. Brown, 190 N.J. 144, 158 (2007); State v. Brown, 118 N.J. 595, 613 (1990); see also State v. Elkwisni, 190 N.J. 169, 178 (2007) ("'the Fifth Amendment is not violated by the use of prearrest silence to impeach a criminal defendant's credibility'") (quoting Jenkins v. Anderson, 447 U.S. 231, 238, 100 S.Ct. 2124, 2129, 65 L.Ed. 2d 86, 94-95 (1980)). Nonetheless, the New Jersey Supreme Court has not yet ruled on whether the Fifth Amendment prohibits the use of a defendant's pre-arrest silence where the defendant does not testify. See Muhammad, supra, 182 N.J. at 573 n.8 ("This Court has yet to hold whether there are any circumstances in which a non-testifying defendant's failure to give a pre-arrest account to police may be used as substantive evidence of his guilt at trial.").
It is the latter situation that has arisen here. Defendant did not testify, yet the State used his pre-arrest silence as substantive evidence to corroborate Diaz's testimony that defendant threatened her. The element of government compulsion was present; the request that defendant turn himself in was made by a police officer, implying that defendant's arrest was imminent. We conclude that under these facts, the Fifth Amendment prohibits the use of defendant's pre-arrest silence, in response to Officer Iurato's request of defendant to turn himself in, to imply acquiescence by silence.
The prosecutor told the jury: "You are on the other end of a phone and a police officer says I'm a police officer, I think you should turn yourself in. Turn myself in? For what? What did I do? I didn't do anything. What are you talking about?
That's what you would expect." He suggested to the jury that an innocent person would have disclaimed any knowledge of Diaz's accusations when questioned by Officer Iurato. The remarks intimated to the jury that if defendant was innocent, he would have said so when questioned by Officer Iurato. Here, as in Muhammad, "the prosecutor impaled defendant on his silence." Muhammad, supra, 182 N.J. at 566-67.
We are cognizant that in Muhammad, the Court barred the use of a defendant's silence "at or near" the time of the defendant's arrest. Id. at 558. Here, the presentence report indicates that defendant was arrested on May 21, 2002. Though the facts here do not fit perfectly with those of prior cases, Diaz's testimony that defendant threatened her was the only evidence supporting the terroristic threats charge. The case rested simply upon the credibility of the State's witnesses. Diaz's testimony that defendant had threatened her with a screwdriver was not reflected in Officer Iurato's police report. Ortiz testified that she did not witness the conversation between defendant and Diaz, and defendant's comments to Iurato were the only corroborating evidence offered by the State. The charge of terroristic threats against Diaz was the only charge of which defendant was convicted. The prosecutor's suggestion that an innocent person would have spoken to his innocence may have tipped the scales against defendant. The manner in which the prosecutor used defendant's silence raises a reasonable doubt as to whether it led the jury to a result it may not have otherwise reached. We conclude that the prosecutor's remarks were clearly capable of producing an unjust result, and defendant's conviction must be reversed.
We turn next to the first point of defendant's brief, that Officer Iurato's testimony that he spoke with "Mr. Martinez" on the telephone constituted an improper net opinion. Because this issue will certainly arise again on retrial, we choose to address it. We find the argument to be without merit.
Defendant mischaracterizes Iurato's testimony. Iurato did not testify that he recognized defendant's voice. Rather, he testified that it was Diaz who identified defendant as the caller, and Iurato simply testified as to what defendant told him. Diaz identified defendant as the caller while handing the phone to Officer Iurato. Iurato's testimony was rationally based on his own perception of events; he did not render an opinion as to who was on the other end of the telephone.
Because we have overturned defendant's terroristic threats conviction, his claims of plain error arising out of Ortiz's testimony that she met defendant when he came out of jail and his arguments challenging the jury charges are moot. Those issues can be addressed by the Law Division judge either prior to or during the retrial.
Finally, we address defendant's sentence. As we previously indicated, we conclude that the sentence imposed pursuant to the consolidated plea agreement was neither excessive nor in violation of Blakely, supra, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403, or Natale, supra, 184 N.J. 458. The judge followed the appropriate sentencing guidelines, appropriately weighed the aggravating and mitigating factors, and applied correct legal principles. State v. Roth, 95 N.J. 334, 364-65 (1984). The sentence was not an abuse of discretion.
We are mindful that defendant was sentenced above the then-existing presumptive term on each charge to which he entered a guilty plea. For example, his eighteen-year term on the first-degree robbery conviction exceeded the then-presumptive fifteen-year term for a first-degree offense. See N.J.S.A. 2C:44-1f(1)(b). We disagree, however, with defendant's argument that the court engaged in improper fact-finding, prohibited by Blakely, supra, 542 U.S. at 301-02, 124 S.Ct. at 2536-37, 159 L.Ed. 2d at 412-13. His prison term was negotiated pursuant to a plea agreement. Although a guilty plea, standing alone, does not constitute implicit consent to judicial fact-finding of aggravating factors to support a sentence above the presumptive term, so long as a defendant stipulates to relevant facts or consents to judicial fact-finding, and the sentence falls within the statutory sentencing range, a sentencing court is authorized to exceed the presumptive term for each conviction. State v. Soto, 385 N.J. Super. 247, 253-54 (App. Div.), certif. denied, 188 N.J. 491 (2006). That is what happened here.
Pursuant to the comprehensive agreement, the State agreed to dismiss the remaining charges of the indictments, including the charge of first degree attempted murder. Based upon his prior convictions, defendant faced a possible extended term of imprisonment if found guilty at trial. See N.J.S.A. 2C:44-3(a). The plea agreement called for concurrent prison terms. At the plea hearing, defendant assented to the factual bases for all three untried charges and pleaded guilty to each. He received the sentence he bargained for. He cannot now complain that it was unexpected or other than that for which he explicitly negotiated. Soto, supra, 385 N.J. Super. at 255.
That said, we are constrained to conclude that the sentence must be reexamined upon the disposition of the terroristic threats charge. That is so because defendant's sentence for his terroristic threats conviction was part and parcel of his consolidated plea agreement. He is therefore entitled to a reexamination of his sentence in light of the vacation of the terroristic threats conviction.*fn2
Reversed in part, affirmed in part, and remanded.