April 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEONARDO VILLEGAS, A/K/A BORI, A/K/A BORICUA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 04-03-0276 and 04-09-1252.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 30, 2008
Before Judges Cuff, Lihotz and Simonelli.
A jury convicted defendant Leonardo Villegas of first degree murder, contrary to N.J.S.A. 2C:11-3a(1) or N.J.S.A. 2C:11-3a(2) (count one); second degree possession of a weapon (handgun) for an unlawful purpose, contrary to N.J.S.A. 2C:39-4 (count two); and third degree unlawful possession of a weapon (handgun), contrary to N.J.S.A. 2C:39-5b (count three). After the trial, pursuant to a plea agreement, defendant pled guilty under a separate indictment to third degree possession of marijuana with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a.
Judge Marmo merged count two into count one and sentenced defendant on count one to a sixty-five year term of imprisonment with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a consecutive five years on count three. On the separate indictment, the judge imposed a concurrent three-year term of imprisonment with a one-year parole disqualifier.
On appeal, defendant raises the following arguments:
POINT I THE COURT'S REFUSAL TO INSTRUCT THE JURY ON THE THEORY OF SELF-DEFENSE DEPRIVED DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL, REQUIRING REVERSAL.
POINT II IN REQUESTING THAT THE COURT NOT INSTRUCT THE JURY AS TO PASSION/PROVOCATION MANSLAUGHTER, DEFENSE COUNSEL DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL. IN THE ALTERNATIVE, THE COURT ERRED IN NOT PROVIDING SUCH A CHARGE SUA SPONTE. (NOT RAISED BELOW)
POINT III THE 65-YEAR TERM IMPOSED UPON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES.
Defendant raises the following arguments in a pro se supplemental brief:
POINT I THE LOWER COURT'S FAILURE TO ADEQUATELY VOIR-DIRE POTENTIAL HISPANIC JURORS COUPLED WITH THE STATE'S FAILURE TO SERVE DEFENDANT WITH DISCOVERIES IN SPANISH AND PROVIDE AN INTERPRETER THROUGHOUT THE PROCEEDINGS, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND A FUNDAMENTALLY FAIR TRIAL. (NOT RAISED BELOW)
POINT II DEFENDANT WAS DENIED A FAIR TRIAL WHEN DUHAMEL SANTIAGO WAS ALLOWED TO TESTIFY IN PRISON GARB IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND IMPARTIAL TRIAL GUARANTEED BY U.S. CONST. AMEND XIV; AND N.J. CONST. (1947) ART. 1, PARS. 1 AND 10. (NOT RAISED BELOW)
POINT III THE TRIAL COURT'S FAILURE TO SUA SPONTE INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSES OF RECKLESS AND AGGRAVATED MANSLAUGHTER DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND A FUNDAMENTALLY FAIR TRIAL IN VIOLATION OF U.S. CONST. AMEND XIV; AND N.J. CONST. (1947) ART. 1, PARS. 1 AND 10. (NOT RAISED BELOW)
POINT IV DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE CUMULATIVE EFFECT OF THE ERRORS ADVERSELY AFFECTED DEFENDANT'S CONSTITUTIONALLY [sic] RIGHT TO A FUNDAMENTALLY FAIR TRIAL. (NOT RAISED BELOW)
We reject all of these arguments and affirm.
The following facts are summarized from the trial record. Jorge "Georgie" Gonzalez allegedly owed defendant money. On September 30, 2003, Gonzalez was driving a rental car in Paterson, when he passed William "Willie" Morales standing in front of 59 Summer Street. Morales was a homeless, regular drug user who loitered in the hallway of Gonzalez's apartment building. Gonzalez asked Morales to go for a ride and Morales agreed. The pair drove through town, then drove back to Summer Street, where they parked and smoked crack cocaine at approximately 2:30 p.m. Morales testified at trial that he did not see a gun in Gonzalez's possession that day.
At approximately 2:30 p.m., Marilyn Torres (Marilyn) saw Gonzalez and Morales sitting in the car. A male teenager approached Marilyn and said he was looking for "Georgie [Gonzalez][.]" After Marilyn pointed out Gonzalez, the young man walked into "Unlimited Kuts Barbershop" and approached defendant, who was getting his weekly haircut from his regular barber, Franklin "Frankie" Torres (Frankie). The young man told defendant that Gonzalez was outside, and asked, "What do you want me to do, get [Gonzalez] out of the car and beat him up?" Defendant replied, "I'll take care of that." When Frankie asked defendant if there was a problem, defendant replied that he was "going to hit somebody." Defendant then left the barbershop, mid-haircut, with the young man following. Outside, the young man pointed out Gonzalez. When the young man asked if defendant was going to hurt Gonzalez, defendant replied, "I'll take care of it." Defendant walked to his car, retrieved and put on a "hoody" sweatshirt and a latex glove, and approached the passenger side of Gonzalez's car. Gonzalez was sitting in the driver's seat and Morales was in the passenger's seat.
Defendant asked Gonzalez for the money he owed him, but Gonzalez said he did not have the money and would pay defendant later. After defendant twice more demanded the money, Gonzalez said, "So what [are] you [going to] do?" and "What do you want me to do, to get my gun?"*fn1 Defendant pulled out a handgun and fired multiple shots across Morales, striking Gonzalez at least five times, killing him. Defendant then went back to the barbershop, held Frankie at gunpoint, and demanded re-entry. Frankie complied. Defendant then insisted that Frankie finish his haircut, but Frankie refused. Defendant then exited the barbershop through the back door.
After the shooting, Morales hid in a nearby park until police found him and took him to headquarters. The next day, Morales gave a written statement, and after reviewing six photographs, identified a photograph of defendant as the shooter, stating, "[T]his really looks like the guy but I'm not sure[.]" Marilyn gave a sworn statement to police the day after the shooting, and reviewed a photo array that included a photograph of defendant. Marilyn identified defendant's photograph and signed it. However, at trial, Marilyn testified that she had never seen defendant before and did not see the shooter in the courtroom. When asked if defendant looked similar to the shooter, Marilyn testified that he "look[ed] a little like" the person she identified, but was "fat[ter]."
Durhamel Santiago was in the area when the shooting occurred. He called his friend Luis "Sonic" Arriaza to find out what happened, and arranged to meet in a van outside Arriaza's home. Arriaza, Santiago, defendant (whom Santiago had known for approximately five to seven months by the name "Bori"), and a fourth man met in the van. Santiago described defendant as "hyper and scared," and he had "half a haircut" and a gun in his hand. Santiago asked defendant "[W]hat happened?" Defendant explained that he had given Gonzalez three to four hundred dollars to purchase a gun, but Gonzalez did not do so and "disappeared." Defendant also said that while he was getting his haircut, he learned Gonzalez was sitting in a nearby car, he went outside and argued with Gonzalez, and then "whatever happened, happened." Defendant also expressed frustration with Frankie, and suggested he would "take care of him[.]" Arriaza took the gun from defendant's lap and suggested defendant turn himself in. After his arrest on an unrelated bench warrant, Santiago provided this information to police and identified defendant's photograph.
Police interviewed Frankie on the evening of the shooting and again approximately one year later. Frankie provided two formal statements, identified and signed defendant's photograph, and told the police he knew defendant for approximately four years and cut his hair every week. At trial, Frankie identified defendant as the man who left the barbershop and as the shooter.
Police also interviewed Jose Lugo, the barbershop owner who worked at the chair next to Frankie. Lugo told police that he was cutting hair at the time of the shooting and Frankie's customer left the chair and barbershop just before the event. Lugo also corroborated the details about how defendant used the barbershop's rear door to escape following the shooting.
Defendant testified and admitted being in the barbershop getting a haircut at 2:30 p.m. on the day of the shooting. He denied knowing or shooting Gonzalez, knowing Santiago, making inculpatory statements to Santiago, or that the van meeting ever occurred. Defendant also testified that before his haircut he had arranged to purchase marijuana. During the haircut, a friend told him that the person with his marijuana was waiting half a block away, and he walked to the area, but the marijuana never arrived. Defendant claims he stayed in the area for two to three hours then returned to his aunt's house, where he resided. After learning that night that the police were searching for him, defendant decided to surrender. He was arrested on October 1, 2003, after surrendering himself to the Passaic County Prosecutor's Office, accompanied by his attorney.
At trial, defendant relied primarily on an identification defense, and testified he did not know or shoot Gonzalez. At the charge conference, defense counsel advised the judge that he "[a]bsolutely [did] not want [a self defense charge] under any circumstances," and that there was no claim of lesser included offenses. Defendant now contends that Judge Marmo erred by not sua sponte charging the jury on self defense, passion/provocation, aggravated manslaughter and reckless manslaughter, and that trial counsel was ineffective for requesting that the judge not charge passion/provocation manslaughter.
Our review of defendant's contentions is one of plain error. "[W]e will not reverse unless the error was 'clearly capable of producing an unjust result.'" State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.) (quoting R. 2:10-2), certif. denied, 188 N.J. 489 (2006); State v. Jenkins, 178 N.J. 327, 361 (2004). Not any possibility of an unjust result is sufficient. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
To sua sponte charge a jury on self-defense, the trial judge must determine that the evidence "'clearly indicate[s]'" such a defense. State v. Perry, 124 N.J. 128, 193 (1991) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial judge also "has an independent obligation" to instruct the jury on lesser-included offenses when the evidence "clearly indicate[s] that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361 (citing State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004)). However, the trial judge should "carefully refrain" from sua sponte charging the jury if a charge is "directly contrary to defendant's position at trial, could have prejudiced his chances of being acquitted of knowing murder by emphasizing his presence at the murder scene, and would have forced counsel to have forsaken or altered his chosen strategy." Perry, supra, 124 N.J. at 162-63; see also State v. Vasquez, 265 N.J. Super. 528, 549 (App. Div.), certif. denied, 134 N.J. 480 (1993).
Based upon our review of the record, we are convinced a self-defense charge and the lesser included offense charges were directly contrary to defendant's position at trial that he did not know Gonzalez or shoot him, and would have seriously prejudiced defense counsel's strategy and completely undermined defendant's theory he did not kill Gonzalez.
We are also convinced the evidence did not clearly indicate a self-defense charge. In fact, there is no evidence that defendant reasonably believed force was "immediately necessary for the purpose of protecting himself against the use of unlawful force by" Gonzalez, or that defendant reasonably believed that deadly force was "necessary to protect himself against death or serious bodily harm." N.J.S.A. 2C:3-4a; N.J.S.A. 2C:3-4b(2); State v. Lopez, 213 N.J. Super. 324, 329 (App. Div. 1985), certif. denied, 103 N.J. 480 (1986).
Also, one may not use deadly force when that person "provoked the use of force against himself in the same encounter[,]" N.J.S.A. 2C:3-4b(2)(a), nor when one knows he can avoid using such force by retreating with complete safety. N.J.S.A. 2C:3-4b(2)(b). The record reveals that defendant was the aggressor who confronted Gonzalez because Gonzalez had disappeared with defendant's money. Despite Gonzalez's alleged statement, "What do you want me to do, to get my gun?" defendant did not know if Gonzalez had a gun and never saw Gonzalez reach for one. Defendant also left the barbershop mid-haircut, prepared for the homicide by putting on a "hoody" and a latex glove, and shot Gonzalez at least five times at close range. Thus there was no error, let alone plain error, in the judge's failure to sua sponte charge self defense.
We are also convinced the evidence did not clearly indicate a passion/provocation manslaughter charge. To sua sponte charge a jury on passion/provocation manslaughter, the trial judge must determine that the evidence clearly indicated that the provocation was adequate; that defendant did not have "time to cool off between the provocation and the slaying"; that the provocation actually impassioned defendant; and that defendant did not actually cool off before the slaying. State v. Mauricio, 117 N.J. at 402, 411 (1990) (citing 2 W. LaFave & A. Scott, Substantive Criminal Law § 7.10, at 255 (1986)); State v. Josephs, 174 N.J. 44, 103 (2002). "If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated." Mauricio, supra, 117 N.J. at 411.
The record reveals no evidence of provocation by Gonzalez, let alone adequate provocation. Rather, the evidence reveals that defendant initiated the encounter with Gonzalez and escalated it from an argument to a shooting, all without Gonzalez engaging in any conduct that could have reasonably provoked an ordinary person to kill. Although defendant notes Gonzalez's threat, "words alone do not constitute adequate provocation." Id. at 413 (citing State v. Crisantos, 102 N.J. 265, 274 (1986)). Thus there was no error, let alone plain error, in Judge Marmo's failure to sua sponte charge passion/provocation manslaughter. Since there was no error, trial counsel was not deficient for requesting that the judge not charge passion/provocation manslaughter. State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984)).
Similarly, the record fails to support an aggravated manslaughter or a reckless manslaughter charge. "[A] person is guilty of aggravated manslaughter when he or she 'recklessly causes death under circumstances manifesting extreme indifference to human life.' In contrast, a conviction for reckless manslaughter requires only that the conduct causing death be committed 'recklessly'" State v. Pearson, 318 N.J. Super. 123, 135 (App. Div. 1999) (quoting N.J.S.A. 2C:11-4a(1) and b(1)). "Recklessness under circumstances 'manifesting extreme indifference to the value of human life . . . is significantly more serious that ordinary reckless conduct.'" Ibid. (quoting State v. Farrell, 250 N.J. Super. 386, 390 (App. Div. 1991)). "The higher degree of recklessness involves not just a possibility that death will occur, but a probability of its occurrence." Id. at 136 (quoting State v. Curtis, 195 N.J. Super. 354, 364-65 (App. Div.), certif. denied, 99 N.J. 212 (1984)).
Here, the record reveals that defendant did not act recklessly. He acted purposely and knowingly. He discovered that Gonzalez was in the area, went to his car to prepare for the homicide by retrieving the "hoody" and latex glove, then went to Gonzalez's car and shot the unarmed man numerous times at close range. There clearly was no error, let alone plain error, in failing to charge aggravated or reckless manslaughter under the circumstances here.
Defendant also contends he is entitled to a new trial because (1) he did not receive copies of the discovery documents in Spanish; (2) Judge Marmo allegedly did not voir dire the jurors if they understood Spanish and could follow the interpreter's translation testimony; (3) there were stages during the trial when defendant's interpreter was not present; and (4) Judge Marmo improperly permitted Santiago to testify in prison garb. These arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following comments.
Although Rule 3:13-3(b) requires the prosecutor to provide discovery to defense counsel, there is no statute or case law requiring that it be provided to a non-English-speaking defendant in a foreign language. Also, the State provided full discovery and thus fulfilled its duty under Rule 3:13-3(b); defendant did not object to the discovery provided; and defense counsel had ample time to translate the documents.
There is no record of the jury voir dire, thus making any meaningful appellate review impossible. However, the record reveals that prior to the testimony of two witnesses through an interpreter, the judge instructed the two Spanish-speaking jurors that "the only thing that a juror can use as evidence is what that interpreter translates and if you understand something different you must disregard that."
The record reveals that defendant was provided an interpreter during trial. Defendant does not specify the stages of trial during which he was allegedly deprived of an interpreter.
Judge Marmo did not err in allowing Santiago to testify in a prison jumpsuit without first instructing the jury that no negative inference could be drawn against his appearance. Santiago was a prosecution witness, Santiago was not a co-defendant, and defendant was convicted prior to State v. Artwell, 177 N.J. 526, 539 (2003), which applies prospectively.
We now address defendant's contention that his sentence is excessive. Defendant is serving a sixty-five-year term of imprisonment. He must serve eighty-five percent of this term before he is eligible for parole.
Murder is a first degree offense, and a person shall be sentenced to a term of imprisonment between thirty years to life. N.J.S.A. 2C:11-3b(1). Because murder is a first degree crime, an eighty-five percent period of parole ineligibility is mandatory. N.J.S.A. 2C:43-7.2a; N.J.S.A. 2C:43-7.2d(1).
We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 169-70 (2006); State v. Roth, 95 N.J. 334, 363-64 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). A trial judge is given "wide discretion" to impose a sentence provided it is within the statutory framework, and we must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). In determining the propriety of a sentence, we must make sure that the sentencing guidelines have been met, that the findings on aggravating and mitigating factors 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 (quoting Roth, supra, 95 N.J. at 364-65).
"[A] trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. In determining the length of defendant's sentence, Judge Marmo found three aggravating factors: "[t]he nature and circumstances of the offense," N.J.S.A. 2C:44-1a(1); "[t]he extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6);*fn2 and the need for deterrence, N.J.S.A. 2C:44-1a(9).
Based upon our review of the record we are satisfied that the sentence is proper. The sixty-five-year term is in the range of the permissible term, and the record fully supports the judge's findings of fact. We discern no mistake in Judge Marmo's exercise of discretion.