On appeal from the Superior Court of New Jersey, Law Division, Essex County, Ind. No. 05-06-1383.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 23, 2007
Before Judges Winkelstein and Yannotti.
Defendant Daniel Sanchez was charged in an Essex County indictment with second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count one); third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count two); and second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count three). Tried to a jury, defendant was found guilty of all charges. Defendant appeals from his conviction and the sentences imposed. For the reasons that follow, we affirm defendant's convictions but remand for re-sentencing.
We briefly summarize the evidence presented at trial. On December 23, 2004, Alex Perez (Alex) was residing on James Street in Newark, New Jersey. Sometime in the evening, Alex and his younger cousin Michael Perez (Michael) drove into the parking lot near the building where he lived. Alex noticed his sister Stephanie Perez (Stephanie) waving to him from the building. Alex and Michael walked towards the building, and Alex noticed someone alone in the middle of the street heading in his direction.
Alex recognized the man as "Flaco," a person he had known his entire life. According to Alex, "Flaco" was wearing a black jacket, blue jeans, and a black hat that covered his forehead and ears. "Flaco" fired a gun at Alex. Alex was hit once in the upper chest. He sustained internal bleeding, fractured ribs, a bruised liver, and a collapsed lung. Alex and Michael ran to Alex's home, while "Flaco" escaped through the parking lot to Orange Street. Alex was taken by ambulance to the hospital, where he learned from the police that "Flaco's" name was Daniel Sanchez.
Alex testified that he knew Giselle Turner (Turner), who had been defendant's girlfriend. Turner and Alex would see each other occasionally because Turner was a friend of Alex's cousin, Yvette. Alex stated that defendant believed that he and Turner were engaged in a romantic relationship, and that this was the reason defendant shot him. According to Alex, defendant was satisfied with his explanation that he and Turner were "just friends."
Michael initially testified that he had never seen defendant before the shooting but then said that he saw defendant "walking around" the area a few days before the incident. Michael stated that on the night in question, he did not get a good look at the shooter's face but noticed that he had "the shape of braids on the ski mask." Michael described the shooter as a Hispanic male, who was about five feet, eight inches tall; and weighed 140 to 145 pounds. Michael also said that the shooter wore a black jacket and black jeans and that after firing the weapon, the shooter ran towards Boyden Street.
Stephanie testified that she heard about three gunshots shortly after she called out to Alex and Michael. Stephanie said that Alex told her that "Flaco" was the person who shot him; however, Stephanie conceded that she did not see the shooter. Stephanie also said that she had never met Turner before the shooting.
Officer Ranee George-Wimberly (Wimberly) of the Newark Police Department (NPD) testified that she and her partner were in a mobile command center in the area at the time of the shooting. She heard gunshots and saw smoke around 9:45 p.m. The officers responded to the scene. Wimberly did not see the shooter's face because he was too far away; however, she noticed that he was wearing a black jacket and "hoodie" along with blue jeans. Wimberly saw two individuals run into the courtyard of the building, while the hooded person ran through the parking lot area. The officers searched for the shooter but returned to Alex's apartment where Alex informed them that "Flaco" was the shooter.
Detective Jack J. Clarkin (Clarkin) of the NPD was the lead detective for the incident. He testified that at the hospital, Turner introduced herself as Alex's new girlfriend. Turner said that she might know the identity of the shooter. Stephanie and Michael told Clarkin that "Flaco" was the person who shot Alex.
Clarkin said that based on that information, they were able to identify defendant as "Flaco".
Clarkin and another detective showed Alex a photo array and he selected defendant's photo. Clarkin said that the officers prepared an arrest warrant but they were unable to locate defendant at the places he was known to frequent. A flyer was disseminated indicating that defendant was wanted by the police. Clarkin testified that defendant was arrested in December 2005 after the NPD received a telephone call from a detective at the Essex County jail.
Defendant elected not to testify but called Turner as a witness for the defense. Turner testified that she and defendant had been in a relationship for five years, and they had a daughter together. Turner said that she did not know the identity of the shooter, and she was not present when the shooting occurred. Turner dated defendant until May 2004. Turner began dating Alex sometime in September 2004 and their relationship lasted about a year. Turner said that she believed defendant was unaware of her relationship with Alex. Turner admitted that she told the police that defendant was known as "Flaco."
On this appeal, defendant raises the following arguments:
THE PROSECUTOR SPECIFICALLY ELICITED TESTIMONY FROM DETECTIVE CLARKIN, IN DIRECT CONTRAVENTION OF STATE v. ALVAREZ, 318 N.J. SUPER. 137 (APP. DIV. 1999), THAT AN ARREST WARRANT WAS OBTAINED BY POLICE AGAINST DEFENDANT (Not raised below).
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE DETECTIVE CLARKIN'S TESTIMONY THAT DEFENDANT WAS ARRESTED AFTER CLARKIN RECEIVED A TELEPHONE CALL FROM THE ESSEX COUNTY JAIL, WAS NOT RELEVANT TO ANY MATTER AT ISSUE, SUGGESTED THAT THIS WAS NOT DEFENDANT'S ONLY ARREST, WAS INADMISSIBLE UNDER N.J.R.E. 404(b), AND DENIED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL (Not raised below).
THE PROSECUTOR IMPERMISSIBLY COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY, AND MISSTATED THE LAW, THESE INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL. U.S. Const., Amends. V, VI, XIV; N.J. Const., Art. I, Para 10. (Not raised below).
A. BY TELLING THE JURY THAT "YOU DON'T KNOW WHAT'S IN THE MIND OF DANIEL SANCHEZ, . . ." THE PROSECUTOR BOTH ATTEMPTED TO SHIFT THE BURDEN OF PROOF AND COMMENTED ON DEFENDANT'S RIGHT TO REMAIN SILENT.
B. THE PROSECUTOR MISSTATED THE LAW IN VARIOUS WAYS WHICH DILUTED THE BURDEN OF PROOF, AND MISSTATED FACTS IN HER SUMMATION.
C. THE PROSECUTOR IMPROPERLY BOLSTERED THE VICTIM'S CREDIBILITY WHEN HE REFERRED TO "FACTS" ABOUT LEFT-HANDED PEOPLE.
THE TRIAL JUDGE ERRED IN FAILING TO TAILOR THE JURY CHARGE ON IDENTIFICATION TO THE PARTICULAR FACTS OF THIS CASE, DEPRIVING DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10 (Not raised below).
THE TRIAL JUDGE OMITTED A KEY SECTION IN THE JURY INSTRUCTION ON FLIGHT, AND IMPROPERLY PLACED THE BURDEN OF DISPROVING FLIGHT ON DEFENDANT.
GISELLE TURNER'S AND OFFICER WIMBERLY'S TESTIMONY AMOUNTED TO LAY OPINION CONCERNING THE CREDIBILITY OF THE VICTIM AND/OR HIS MOTHER, AND DENIED DEFENDANT A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I., ¶¶ 1, 10 (Not raised below).
DEFENDANT'S EXTENDED TERM SENTENCE MUST BE REMANDED PURSUANT TO STATE v. PIERCE.
We first consider defendant's contention that the judge erred by permitting the assistant prosecutor to elicit testimony from Detective Clarkin that a warrant had been issued for defendant's arrest. This contention was not raised at trial. Therefore, we consider whether the admission of the evidence was erroneous and, if so, whether it was an error that "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
At trial, the State called Clarkin as a witness and on direct examination, he testified as follows:
Q: Okay. And upon receipt of the statement of the victim identifying the person who shot him and identification of the photograph of the person who shot him, what did you do next in your investigation, Detective Clarkin?
A: Armed with the information and the positive identification of Daniel Sanchez, I prepared an arrest warrant for Daniel Sanchez.
Q: Once you prepared the arrest warrant for Daniel Sanchez, did you then make an effort to execute that arrest warrant by locating Daniel Sanchez?
A: That's correct. After we got -- after I had the warrant signed, yeah, I made a couple [of] efforts, couple days. I went to locations that I was advised that he lived or had lived.
Clarkin additionally testified:
Q: After you went to those locations in an attempt to locate him, what did you do next in an effort to try to execute your arrest warrant?
A: There was a wanted flyer prepared and disseminated throughout the precincts, also in our office. Again, I tried to identify any locations that he frequented.
Defendant argues that this testimony improperly implied that defendant had been taken into custody on an arrest warrant. He contends that this evidence was unduly prejudicial and its admission denied him of his right to a fair trial. In support of this contention, defendant relies upon our decisions in State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), and State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999).
In Milton, the State presented evidence that an unexecuted warrant had been issued to search defendant. We reversed the defendant's conviction because the evidence concerning the warrant implied "that sufficient independent proof had been presented to a neutral judge to believe that defendant ...