March 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HECTOR MARTINEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-04-0347.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 12, 2007
Before Judges Cuff, Lisa and Simonelli.
A jury found defendant Hector Martinez not guilty of murder but guilty of first degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1) and N.J.S.A. 2C:2-6 (Count One); third degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d and N.J.S.A. 2C:2-6 (Count Two); and fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d and N.J.S.A. 2C:2-6 (Count Three). Defendant was sentenced to a twenty-year term of imprisonment subject to an 85% NERA*fn1 parole ineligibility term on Count One. After merging Count Three with Count Two, defendant was sentenced to a concurrent five-year term. The appropriate assessments and penalties were also imposed.
On the morning of December 15, 2002, the body of Nancy Martinez was discovered in Pulaski Park in Passaic. She was a local resident and known as a prostitute and drug abuser.
A police officer who responded to the scene observed several puncture wounds to the left side of the victim's chest. The medical examiner described seven stab wounds, including one which penetrated the chest cavity, one which penetrated the abdominal cavity and damaged the lower aspect of the left kidney and the aorta, and one which penetrated the pericardial sac and the left heart ventricle. The examiner also described an incised wound to one arm that suggested that the victim had raised her arm to defend herself from a physical attack. The cause of death was multiple stab wounds to the chest and abdomen. The medical examiner estimated that the victim died about midnight.
The victim was last seen alive with her boyfriend, Gilberto Ramos, also known as Monstro. From information obtained from Ramos and others, the police sought to locate a person known as Coquito. Defendant was known as Coquito.
One of the persons interviewed by the police on December 15, 2002, was Jose Ramirez. On December 17, police interviewed Ramirez again at police headquarters. Following this interview, police left to find defendant. He was found under an overpass of Route 21, a place where homeless persons congregated, and transported to the police station where he was administered his Miranda*fn2 rights and gave a statement.
In his statement, defendant related that on December 14, at approximately 11 p.m., Ramirez and he encountered the victim on a street in Passaic and paid her $5 to obtain marijuana for them. She departed with the money and Ramirez and defendant continued to walk down the street. After traversing two or three blocks, they again encountered the victim, who was with a man.*fn3 Instead of giving them the marijuana she promised to obtain for them, the man "got aggressive with us and he went after [defendant] and the lady went after [Ramirez]." Then, defendant stated that "I took out a knife that I had in my pocket and I lunged at him at least twice, but I don't know if I actually cut him or if I hit her, because we were all tangled up. [Ramirez] took out the knife and he went after her with it."
On appeal, defendant raises the following issues:
Point 1 The jury charges were insufficient.
A. Failing to charge passion/provocation manslaughter was erroneous and violated defendant's constitutional right to due process (raised below).
B. The accomplice liability charge did not follow the model charge (not raised below).
Point 2 Three references to the out-of-court statement of co-defendant Ramierez that implicated defendant in the crime violated the hearsay rule and defendant's constitutional right to confront the witnesses against him (raised below).
Point 3 The trial court should have excluded defendant's statement to the police because the State did not demonstrate that it was defendant's own voluntary statement (raised below).
Point 4 Defendant's sentence is excessive. We affirm.
Defendant argues that the trial judge erred when he denied defendant's request to charge passion/provocation manslaughter. He also contends for the first time on appeal that the accomplice liability charge did not conform to the model charge and this nonconformity omitted "what view of the facts could lead the jury to" convict the principal of murder but the accomplice of a lesser offense.
A. Passion/Provocation Manslaughter
The request to charge passion/provocation manslaughter was premised solely on the following sentence in defendant's statement: "But the guy that was with her got aggressive with us and he went after me and the lady went after Jose." The trial judge agreed to charge self-defense but denied the request to charge passion/provocation manslaughter because there was no evidence to support that charge. We agree.
Passion/provocation manslaughter is a lesser included offense of murder. However, unlike aggravated and reckless manslaughter, it is an intentional crime. State v. Robinson, 136 N.J. 476, 486 (1994). Passion/provocation murder is established when "[a] homicide which would otherwise be murder under section 2C:11-3 is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2).
The crime has four elements: (1) "the provocation must be adequate; [(2)] the defendant must not have had time to cool off between the provocation and the slaying; [(3)] the provocation must have actually impassioned the defendant; and [(4)] the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). "If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated." Ibid.
An objective, reasonableness standard applies to the first two elements, whereas the last two elements are subjective. Ibid. If the court finds that the first two objective elements may be supported by the evidence, a passion/provocation charge should be given, because as a general rule the subjective elements raise questions for the jury. Robinson, supra, 136 N.J. at 491.
When determining whether to charge passion/provocation manslaughter, the trial judge must view the evidence in the light most favorable to the defendant. Mauricio, supra, 117 N.J. at 412. Moreover, the court should consider the State's burden to prove beyond a reasonable doubt the absence of adequate provocation. Ibid.
"The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). Stated differently, "[i]n order to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense." State v. Savage, 172 N.J. 374, 396 (2002). It follows that a defendant is entitled to a charge on all lesser included offenses that are supported by the evidence. Ibid.
Moreover, "when a lesser offense is requested by a defendant, as in this case, 'the trial court is obligated, in view of defendant's interest, to examine the record thoroughly to determine if the rational-basis standard has been satisfied.'" Id. at 397 (quoting State v. Crisantos, 102 N.J. 265, 278 (1986)). If there is a rational basis for the jury to convict the defendant on the lesser included offense and defendant requests a charge on that offense, the failure to do so requires a reversal. Id. at 397-98.
Here, the record fails to support defendant's request for a passion/provocation charge. Viewing the evidence in the light most favorable to defendant, the alleged provocation was not so severe that it would cause an ordinary person to lose control and commit an intentional homicide. See Mauricio, supra, 117 N.J. at 412 (stating the question of reasonableness is whether the loss of self-control in response to the provocation is a reasonable reaction).
Specifically, defendant described the extent of the provocation, when he stated in his testimony that the unidentified man "got aggressive" and "went after me." Nothing in defendant's statement suggests that defendant was so impassioned by the man that he killed the aggressor's female companion. Defendant neither elaborated about the "aggressive" behavior of the victim or the man, nor suggested that he was unable to retreat from the altercation. Significantly, at no point did any testimony reveal that the victim or the unidentified man possessed any weapons. See Mauricio, supra, 117 N.J. at 414 (recognizing that a threat with a gun or knife might constitute adequate provocation); accord State v. Taylor, 350 N.J. Super. 20, 39-40 (App. Div.), certif. denied, 174 N.J. 190 (2002). Indeed, no weapons were involved until defendant escalated events by drawing a knife and lunging at the victim's companion. Further, defendant was calm enough to attend a birthday party immediately after the altercation.
Finally, defendant implies that the dispute between him and the unidentified man constituted mutual combat, warranting a passion/provocation charge. However this argument is unavailing because, generally, for "mutual combat" to reduce a murder charge to manslaughter, "the contest must be waged on equal terms." State v. Viera, 346 N.J. Super. 198, 215-16 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002). Here defendant possessed a weapon and the unidentified man was unarmed. Crisantos, supra, 102 N.J. at 274-75. Further, in this case, the man was not the deceased. See 1 O. Warren and B. Bilas, Warren on Homicide § 110 525-26 (perm. ed. 1938) (stating "the offense is not manslaughter, but murder, where the defendant alone was armed; and took an unfair advantage of the deceased." (emphasis added)); 2 C. Torcia, Wharton's Criminal Law 245 (14th ed. 1979) (stating "if a person, under color of fighting on equal terms, kills the other with a deadly weapon which he used from the beginning or concealed on his person from the beginning, the homicide constitutes murder." (emphasis added)). For these reasons, defendant's argument that "the evidence did not conclusively demonstrate that the dispute with the taller man was not fought on equal terms" must fail. In sum, a passion/provocation charge was not warranted because there was inadequate evidence to provide the jury with a rational basis to convict defendant of passion/provocation manslaughter.
B. Accomplice Liability
Defendant also contends that the accomplice liability charge was flawed because it departed from the model charge and failed to adequately inform the jury of the distinctions between the specific intent required for each lesser included offense and what view of the facts could lead them to conclude that defendant could be found guilty of each lesser included offense. The State responds that the charge, read in its entirety, fully and clearly imparted the law governing accomplice liability to the jury and that defendant cannot demonstrate that any nonconformity was clearly capable of producing an unjust result.
Our review of this argument is guided by two basic principles. First, we must be satisfied that any error was clearly capable of producing an unjust result because defendant lodged no objection to this charge at trial. R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005). In the context of this case, we must be satisfied that the charge had the clear capacity to preclude a full and fair consideration of the reckless manslaughter charge and had the clear capacity to produce an unjust conviction for a more serious offense. Second, we must review the charge as a whole. State v. Jordan, 147 N.J. 409, 422 (1997); State v. Wilbely, 63 N.J. 420, 422 (1973). Measured by these principles, the argument fails.
Aggravated manslaughter and reckless manslaughter are not intentional offenses. Rather both are characterized as reckless action. The basic distinction between aggravated manslaughter and reckless manslaughter is the greater likelihood of death. State v. Bakka, 176 N.J. 533, 549-50 (2003). Justice Zazzali explained the distinction as follows:
Although the crimes of both aggravated manslaughter and vehicular homicide require the element of recklessness, aggravated manslaughter demands a more stringent standard of reckless conduct, namely that the defendant acted "under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a(1). The jury must determine whether that degree of recklessness was present in view of all surrounding circumstances. To establish that heightened degree of recklessness, the State must prove beyond a reasonable doubt that defendant's actions created a probability as opposed to the mere possibility that death would occur. State v. Kotter, 271 N.J. Super. 214, 226 (App. Div.), certif. denied, 137 N.J. 313 (1994); State v. Jiminez, 257 N.J. Super. 567, 577-78, 577 n.1 (App. Div. 1992); State v. Curtis, 195 N.J. Super. 354, 364-65 (App. Div.), certif. denied, 99 N.J. 212 (1984). [Ibid.]
The jury must also be informed that for a defendant to be guilty as an accomplice, he must "(a) possess the culpability required for the substantive crime, and (b) actually foresee and intend the result of his or her act." Torres, supra, 183 N.J. at 566. When lesser included offenses are submitted to the jury, the jury must be informed of the distinctions between the specific intent required for each offense and that the principal and the accomplice may be found guilty of different offenses or different degrees of an offense, based on what the accomplice actually did and intended to do. State v. Franklin, 377 N.J. Super. 48, 55 (App. Div. 2005); State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993).
Here, the trial judge informed the jury at length that each offense had a different intent element, that a person may be found guilty as an accomplice of the same offense as the principal as long as they shared the same intent that is the basic element of the offense, and that an accomplice can be found guilty of a different offense than the principal when the accomplice acted with a different intent. Moreover, the trial judge explained the distinction between aggravated manslaughter and reckless manslaughter when he emphasized the heightened level of recklessness for aggravated manslaughter that leads to a probability of death as opposed to the mere possibility of death.
Finally, the use of a knife in this case elevates the likelihood of death. Defendant admitted that he lunged at the victim's companion, that the four individuals were tangled together, and admitted that he could have stabbed the victim during the melee. Under these circumstances, we discern no error much less plain error.
Ramirez was also arrested and charged with murder for the death of Nancy Martinez. The record reveals that Ramirez gave a statement to the police, defendant was advised that Ramirez gave a statement, and defendant subsequently related his involvement in the confrontation with the victim and Ramos. Later, during the testimony about the effort to locate the knife used in the fight, a witness referred to steps taken after detectives spoke to Ramirez. Defendant argues that these references to statements made by Ramirez violated his right to confrontation. Under the circumstances of this case, we hold that these references do not require a new trial.
The first reference to any statement given by Ramirez occurred during the testimony of Detective Dehais, the detective who interviewed defendant and recorded his statement. The prosecutor asked the detective if he spoke to defendant after the issuance of Miranda instructions. The detective responded:
At that point, I just, . . . told him, listen, you know, . . . we know you . . . were involved in this, you know, we already spoke to your friend, basically. And so, . . . the gig is up, just tell the truth and that's the best thing to do at this point.
No objection was expressed by defendant at that time.
During cross-examination, defendant's attorney began to question whether the detective proceeded directly to questions about defendant's involvement in the death of the victim. The detective responded that "once . . . he was faced with the facts and he -- . . . Well, sir, . . . once I told him that, you know, we spoke to his buddy and the gig was up . . . ." At this point, defense counsel asked to be heard outside the presence of the jury. Defendant's mistrial motion was denied and defense counsel did not request a curative instruction because of the risk of highlighting the impermissible reference to information obtained from Ramirez.
The third reference to a statement given by Ramirez occurred the next day in response to the prosecutor's question about what efforts had been taken to locate any knives used in the assault. Detective Waksmundzki responded that "at the break of dawn on the 18th with -- after the statement of Jose Ramirez was obtained. . . . " Defense counsel objected and the trial judge immediately instructed the jury to disregard that testimony. The trial judge denied defendant's motion for a mistrial because he had promptly, virtually instantaneously, admonished the jury to disregard the testimony. He reasoned that the jury knew that Ramirez was involved in this incident, faced criminal charges, and had given a statement. He concluded that any prejudice to defendant was minimal because the jury never learned the contents of the statement or that he had implicated defendant in the assault and death of the victim.
The Sixth Amendment of the United States Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." U.S. Const. amend. VI. The right of confrontation includes the right to cross-examine witnesses at trial. Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1706, 95 L.Ed. 2d 176, 185 (1987). Consequently, the introduction of an out-of-court statement made by a non-testifying co-defendant which directly or by necessary implication inculpates another defendant has the capacity to violate that defendant's Sixth Amendment right of confrontation. Bruton v. United States, 391 U.S. 123, 125-26, 88 S.Ct. 1620, 1622, 20 L.Ed. 2d 476, 478-89 (1968); State v. Roach, 146 N.J. 208, 224-225, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996); State v. Bankston, 63 N.J. 263, 269 (1973).
In Bankston, the Court considered whether testimony by a police officer at trial concerning information he obtained from an informant was inadmissible hearsay and violated the defendant's Sixth Amendment right of confrontation. There, the Court acknowledged the well-settled rule that the right of confrontation is not violated when a police officer explains the reasons he apprehended a suspect or went to the scene of a crime by stating that he did so "upon information received." Bankston, supra, 63 N.J. at 268. Such testimony has been held to be admissible to show that the officer was not acting arbitrarily. Ibid. However, the Court determined that when an officer becomes more specific by repeating what some other person told him concerning a crime by the accused, both the hearsay rule and the right of confrontation are violated. Id. at 268-69. Moreover, a statement that creates an impermissible inference of guilt is also barred. Id. at 271. The Court reasoned, "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Ibid.
In Roach, supra, the Court confronted the creation of an impermissible inference of the defendant's guilt when a police officer's testimony referred to an interview with two co-defendants following their arrest. 146 N.J. at 224. In his trial testimony, the police officer recounted the course of his investigation. Ibid. In doing so, he identified the persons from whom he received information. Ibid. The Court noted that the officer did not specifically repeat the information obtained from the named individuals but found that the officer "by necessary inference implicated defendant," and that this inference was contrary to the hearsay rule and violated the defendant's right to confront the witnesses against him. Id. at 224-25. Nevertheless, the Court found the error harmless in large part because the "defendant's confession created in itself an inescapable inference that he was a criminal actor, either as an accomplice or, possibly, as a principal." Id. at 226.
Here, the trial judge correctly determined that nothing in either detective's testimony with regard to their interaction with Ramirez rose to the level of prejudicial error. The Supreme Court and this court have consistently found such evidentiary violations require a new trial only when the cited errors are far more specific and revealing than those that occurred in this case. See, e.g., State v. Vandeweaghe, 177 N.J. 229, 241 (finding prejudicial error in testimony that the reason for police dispatch was a report of a man beating a woman); State v. Farthing, 331 N.J. Super. 58, 74-75 (App. Div.) (finding investigator testimony error where his purpose was "[t]o locate and arrest defendant for whom he had obtained arrest warrants for murder and robbery."), certif. denied, 165 N.J. 530 (2000); State v. Bowens, 219 N.J. Super. 290, 299-300 (App. Div. 1987) (noting police officer specifically referred to the defendant and the time of the offense based on hearsay report); State v. Thomas, 168 N.J. Super. 10, 15 (App. Div. 1979) (finding prosecutor's step-by-step questioning of detective's investigation based on interviews with witnesses contrary to hearsay rule and in violation of the defendant's right to confront the witnesses against him); State v. Long, 137 N.J. Super. 124, 133-34 (App. Div. 1975) (noting officer's testimony that he went to the scene of the arrest because he was told by people at that address about drug dealing), certif. denied, 70 N.J. 143 (1976). All of the cases cited by defendant require more than what occurred in this case. Only when the logical, or inescapable, inference to be drawn from the testimony can lead the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, should the testimony be disallowed as hearsay. Bankston, supra, 63 N.J. at 271. At most, in this case the jury could infer an association between defendant and Ramirez based on the officers' statements.
Finally, as in Roach, defendant's confession by itself created an inescapable inference that he was a criminal actor, either as an accomplice, or as a principal. Defendant admitted to being an active participant in an altercation, pulling out a knife and lunging at two individuals, possibly stabbing the person found dead near the location of the assault. The jury had substantial evidence other than the tangential inferences to Ramirez upon which to found its verdict.
Defendant argues that the State failed to carry its burden that the inculpatory statement attributed to defendant was actually given by defendant. He contends that the statement should have been suppressed because the detective questioned defendant in Spanish, received defendant's answers in Spanish, recorded his answers in English, translated the English statement into Spanish, and then requested defendant to sign the English document. In addition, the statement was neither visually or audibly recorded.
The interview was conducted in Spanish by a detective for whom Spanish is his first language. He testified that he verified that defendant understood him. The detective also informed the judge that his department did not tape record suspect interviews in 2002. Although the judge observed that the method employed by the detective seemed to dilute the value of the statement and was even "baffling", he found the concerns raised by defendant went to the weight rather than the admissibility of the statement. The judge also expressly found that the statement written in English was a faithful recordation of the statement given by defendant in Spanish. Notably, in his final charge to the jury, he expressly informed the jury that the circumstances by which the statement was obtained and recorded could be considered by it in determining whether the statement was given by defendant and the weight the jury should accord to it.
In State v. Cook, 179 N.J. 533, 560, 562 (2004), the Court recognized the benefits of electronic recordation of custodial interrogations but referred the question to a special committee. Following the report of that committee, the Court adopted Rule 3:17. As of January 1, 2006, all custodial interrogations in all homicide investigations must be electronically recorded.*fn4
The failure to electronically record a custodial interrogation "shall be a factor for consideration by the trial court in determining the admissibility of a statement, and by a jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement." R. 3:17(d).
Here, the trial judge found that the detective was a credible witness. Thus, he found that the detective faithfully recorded and translated defendant's responses to his questions. Furthermore, the judge found that the detective read the entire statement to defendant in Spanish before defendant signed it.
As noted by the trial judge, electronic recordation under these circumstances would have been the preferable course. We, like the trial judge, cannot hold that the statement should have been suppressed because a better method should have been employed. Rather the circumstances of the recordation of defendant's statement is a factor for the judge in his consideration of its admissibility and for the jury in its consideration of whether the statement was made by defendant. Moreover, the judge so informed the jury that the very circumstances cited by defendant should be weighed by it in its consideration of whether defendant made the statement attributed to him.
Defendant is serving a twenty-year term of imprisonment. He must serve 85% of this term before he is eligible for parole. Defendant argues that the sentence is excessive.
Aggravated manslaughter in which a person recklessly causes death under circumstances manifesting an extreme indifference to human life, N.J.S.A. 2C:11-4a(1), is a first degree offense, and a person may be sentenced to a term of imprisonment between ten and thirty years. N.J.S.A. 2C:11-4c. Defendant received a sentence in the middle of the permissible range.
Appellate review of a sentence must be "careful and vigorous," though this court shall not substitute its judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether this court would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). A trial judge is given "wide discretion" to impose a sentence provided it is within the statutory framework, and the reviewing court must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). However, this court must make sure that the sentencing guidelines set forth in the statute have been met, that the aggravating and mitigating factors found below are based upon "competent credible evidence in the record," and that the sentence is not "clearly unreasonable so as to shock the judicial conscience." Id. at 501 (citing State v. Roth, 95 N.J. 334, 364-65 (1984)).
In determining the length of Martinez's sentence, the trial judge found three aggravating factors: the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1); the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). Judge Gannon found mitigating factor five, N.J.S.A. 2C:44-1(b)(5) (whether the victim's conduct induced or facilitated defendant's conduct), "virtually insignificant," and rejected mitigating factor seven, N.J.S.A. 2c:44-1(b((7) (lack of prior criminal history), because defendant did have a prior, albeit minor, criminal record.
We are satisfied that the sentence is unremarkable. The twenty-year term is the mid-range of the permissible term. The record fully supports each finding of fact. We discern no mistake in the exercise of the considerable discretion reposed in the sentencing judge.