May 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICARDO CEPATES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-04-00465.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 4, 2008
Before Judges Lintner, Sabatino and Alvarez.
Defendant, Ricardo Cepates, was convicted in two separate trials of multiple first-degree aggravated sexual assaults and related offenses against eight victims. He now appeals, contending the trial court erred when it denied his request for severance and that inferential hearsay was elicited from an investigating detective in violation of his right of confrontation. Defendant also challenges his sentence as manifestly excessive. He is entitled to reconsideration of his sentence on remand pursuant to the principles enunciated in State v. Natale (Natale II), 184 N.J. 458 (2005). We affirm the convictions, and remand in accord with Natale II.
As a result of the first trial, which addressed charges involving five victims, the jury on October 26, 2004, returned guilty verdicts on Middlesex County Indictment No. 04-04-00465 on five counts of first-degree kidnapping, N.J.S.A. 2C:13-1(b) (counts one, twenty, twenty-five, thirty-four, and forty); nine counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts two, three, twenty-one, twenty-two, twenty-six, twenty-seven, thirty-five, thirty-six, and forty-one); five counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c) (counts four, twenty-three, twenty-eight, thirty-seven, and forty-two); and four counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts five, twenty-four, twenty-nine, and thirty-eight). Counts one through five relate to crimes which occurred on September 20, 2001, against J.C.; counts twenty through twenty-nine relate to crimes which occurred on February 23, 2002, against E.M. and her daughter S.C.; counts thirty-four through thirty-eight relate to crimes which occurred on August 16, 2002, against C.L.; and counts forty through forty-two relate to crimes which occurred on June 28, 2003, against M.M.*fn1
Defendant was subsequently convicted at a separate trial on January 31, 2005, on the remaining counts of the indictment. Those charges were an additional first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count nine); second-degree sexual assault, N.J.S.A. 2C:14-2(c) (count ten); second-degree burglary, N.J.S.A. 2C:18-2 (count eleven); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count twelve); third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(d) (count thirteen); and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts fifteen and sixteen). Defendant was acquitted of count fourteen. The second trial related to an October 13, 2001, incident, during which the State contended defendant victimized I.R. and her children, ages seven and three.*fn2
After appropriate mergers, defendant was sentenced on all counts to a total aggregate term of 139 years subject to the No Early Release Act (N.E.R.A.), N.J.S.A. 2C:43-7.2(c), together with monetary penalties and assessments. This sentence represented seven consecutive terms for the crimes against all victims: J.C., E.M., S.C., C.L., M.M., I.R. and her two children.
September 20, 2001 Assault
At approximately 7:00 p.m. on September 20, 2001, in New Brunswick, J.C., a college student, noticed a man following her as she walked for several blocks. Shortly after she crossed the street she felt someone grab her from behind and cover her face. The attacker told her to keep quiet, held a broken bottle to her waist and forced her to walk to a nearby park. He spoke to her in broken Spanish and English, told her to "shut up" and repeatedly punched her. As J.C. struggled, the assailant raped her. He threatened to kill her if she looked at his face. As soon as the assailant left, J.C. fled and summoned the police.
J.C. received emergency medical treatment for a broken jaw, broken cheekbone, bruised eyes and ribs, scratches and abrasions to her hands and wrists. $20 was missing from her wallet. DNA samples belonging to the perpetrator were collected by a licensed sexual assault nurse examiner (SANE nurse). J.C. described her attacker as approximately 5 feet, 8 inches tall, with dark straight hair. She thought he had a Central American accent.
February 23, 2002 Assault
On February 23, 2002, at approximately 5:00 a.m., E.M. was walking to an employment agency, accompanied by her fifteen-year old daughter S.C., when a man put a knife to S.C.'s neck. He told E.M. that if she wanted her daughter to stay alive, she should follow but not scream. The assailant, who according to E.M. spoke Spanish with a Honduran accent, took the women to a vacant lot and made them kneel. He demanded their money and jewelry. He forced both mother and daughter to perform fellatio. He then forced them to lie on the ground face down. While pointing the knife at the child, he vaginally penetrated her mother. He penetrated the daughter anally and vaginally. When a police car passed by, the perpetrator threatened to kill the women if they screamed. After he left, they immediately reported the assaults.
Although they were examined by a SANE nurse, DNA samples could only be collected from S.C. E.M. reported that the attacker wore a hooded sweatshirt.
August 16, 2002 Assault
At approximately 10:30 p.m., on August 16, 2002, C.L., a college student, was walking to a video store when a man approached and asked for money, while armed with a knife. She grabbed at the weapon as he dragged her into an alley. When she screamed, she was told to "shut up." He forced C.L. to perform fellatio, and then raped her. The assailant apologized and left. She also immediately reported the crime.
DNA evidence was collected from C.L. by a SANE nurse at the hospital emergency room. C.L. testified that her attacker was Hispanic and spoke in Spanish.
June 28, 2003 Assault
On June 28, 2003, at approximately 5:20 a.m., when M.M. arrived home from work, she found a man standing on her doorstep. He spoke with a Honduran accent, and asked if she knew someone named "Jose." After she said, "no," the man grabbed her hair and pulled out a knife. As he dragged her away, she offered him money and jewelry, but the assailant told her in Spanish that he wanted to kill her. He cut two of her fingers as she struggled. He pushed her behind some shrubbery and raped her. The assailant told M.M. that if she saw him again, he would kill her.
M.M. went home, promptly called the authorities and was taken to a hospital. A SANE nurse collected DNA samples from her as well.
October 13, 2001 Assault
During the early morning hours of October 13, 2001, I.R. was home watching television with her two daughters after her husband left for work. At approximately 3:00 a.m., a man armed with a knife appeared at the door. When the youngest child saw him, she jumped off the bed and tried to run away. He threw the child back onto the bed and as the children began to cry, the assailant threatened to kill them as well as I.R. He covered the girls with a bedspread and raped I.R. As she struggled with him he cut her with the knife and bit her on the neck. I.R. waited until morning and fled with her children to an uncle's apartment. She did not report the crime until three days later.
I.R. described her attacker as a tall man with black, wavy hair who spoke in Spanish. The SANE nurse who examined I.R. noted scratches on her arms and thighs, as well as a bite mark on her throat. At trial, the State presented DNA evidence taken from a semen stain found on a pair of shorts worn by I.R. the night of the assault. The State's DNA expert testified that the defendant could not be excluded as a partial contributor. The expert opined that the number of people who could not be excluded was "approximately one in ten point nine trillion of the African American population, one in two point forty-four trillion of the Caucasian population and one in four point ninety eight trillion of the Hispanic population."
THE STATE'S PROOFS
In addition to in-court identifications of defendant by M.M., C.L. and I.R., the State presented DNA evidence taken from J.C., S.C., I.R., C.L., and M.M. which matched defendant's DNA. The State also presented proof that all the assaults occurred within walking distance of defendant's home. All the victims identified their attacker as a Hispanic male. All the victims, with the exception of E.M., who was over 40, were young women. All the victims were Hispanic women, with the exception of C.L., who is Asian and, according to the trial judge, could be mistaken for Hispanic. During the assaults, the attacker used a weapon to either cut or threaten his victims. In every instance the assailant used a knife, with the exception of J.C., whom he threatened with a broken bottle. The manner in which the sexual assaults were perpetrated was also similar. No condom was used in any rape. In four of the rapes, penetration was from behind and defendant forced four of his victims to perform fellatio.
On appeal, defendant raises the following points:
THE TRIAL JUDGE ERRED IN JOINING FOR TRIAL, OVER DEFENSE COUNSEL'S OBJECTION, FOUR UNRELATED CRIMINAL EPISODES THAT OCCURRED MONTHS APART.
IN CEPATES'S SECOND TRIAL, THE JUDGE PERMITTED THE STATE TO ELICIT FROM DETECTIVE SELESKY INFERENTIAL HEARSAY, WHICH PREJUDICED CEPATES AND VIOLATED HIS RIGHT TO CONFRONTATION.
THE IMPOSITION OF SEVEN CONSECUTIVE PRISON SENTENCES, TOTALING 139 YEARS, WITH A 119-YEAR PAROLE DISQUALIFIER, WAS MANIFESTLY EXCESSIVE.
DEFENDANT IS ENTITLED TO A REMAND UNDER STATE V. NATALE.
Defendant's first contention is that the trial judge erred in denying his motion for severance of the four sets of charges involving five victims which were addressed jointly in the first trial. He argues that because the incidents involved separate victims and occurred months apart, they should have been tried separately.
"A critical inquiry is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible . . . in the trial of the remaining charges." State v. Pitts, 116 N.J. 580, 601-02 (1989) (citing State v. Moore, 113 N.J. 239, 274 (1988); State v. Kent, 173 N.J. Super. 215, 220 (App. Div. 1980)). In other words, if the evidence of all the crimes would have been admissible in the trial of any one of them pursuant to N.J.R.E. 404(b), no severance is required. See State v. Morton, 155 N.J. 383, 451 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). The trial court's decision is entitled to deference and is reviewed under an abuse of discretion standard. State v. Ramseur, 106 N.J. 123, 266 (1987).
The test as to severance is the same as the test for the admission of other crimes evidence:
"1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice." [State v. Cofield, 127 N.J. 328, 338 (1992) (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).]
We concur with Judge DeVesa's analysis that the similarities between the assaults upon J.C., S.C., E.M., C.L., and M.M. were highly relevant to the material disputed issue of identity. For this reason, the counts as to the assaults of the first group of victims were properly tried jointly.
As Judge DeVesa said in rendering his decision on the motion to sever:
[I]t is alleged and the [c]court finds at this stage in the proceedings that apparently all the attacks occurred in the same small geographic area around Somerset Street within a period of several months. Each of the rapes occurred late at night or early in the morning. The defendant used a knife in all but one of these episodes and in that one he used a broken bottle. All of the victims were Hispanic except for [C.L.], an Asian female, who could have been mistaken for being a Hispanic female. In each alleged assault the defendant forced women to isolated locations and then took measures during the assaults to prevent the victims from seeing his face. In three out of four of these alleged assaults the defendant attempted vaginal penetration from behind. He made demands relating to oral sex and robbed the victims after the sexual assaults and in each of these cases the forensic testing revealed that the Hispanic male identified by the victims was indeed the defendant as corroborated by DNA match.
The [c]court finds that the first prong set forth in State v. Cofield is easily satisfied since these episodes together clearly relate and are relevant to the issue of disputed identity. Again, it appears that the defendant asserts he is simply not the person who committed these crimes and indeed argues that the DNA testing was sufficiently flawed as to raise questions about its accuracy. Consequently, the identity of the defendant is the central issue in the case and therefore any evidence of his identity is clearly relevant.
The second and third prongs are also satisfied as far as the [c]court is concerned in that the DNA evidence despite the attacks on it by the defense at this point clearly and convincingly establish the identity of the defendant as the assailant and each of the criminal episodes is so substantially similar on the basis of modus operandi that they too tend to establish the identity of the defendant.
Since it is clear in this case that the central attack on the State's case will be the accuracy of the DNA evidence that it would appear necessary that the State would be allowed the benefit of the cumulative effect of the DNA evidence from [each] of the criminal episodes and to rely on the similarity [of] the episodes to enforce its proofs regarding the identity of the assailant.
Finally, under the fourth prong of the test the [c]court must assess the prejudice that would result if these counts are joined. Here, again, the [c]court finds that given the difficulty and the necessity the State would have proving identity without the joinder clearly this evidence would be admissible in separate trials and therefore, frankly, it would actually be more fair to the defendant to join these cases together rather than him face fragmented prosecutions where he would be facing life imprisonment each time that he was tried. So, from the standpoint of both fairness to the State and fairness to the defendant the [c]court finds that the probative value of this information clearly is great and that there is no prejudicial impact that outweighs the probative value.
The interest of judicial economy is also served in a case where the central issue would appear to be very complex and lengthy and perhaps drawn out testimony regarding the accuracy of DNA testing, the competence of the State Police Forensic Laboratories that do DNA testing and undoubtedly we appear headed for a very lengthy and drawn out battle of experts so to speak and there again that suggests a great benefit to the public that these matters be joined.
The trial court's decision is unassailable. No abuse of discretion occurred.
The inflammatory potential of other crimes evidence, particularly in this case, required careful scrutiny. As Judge DeVesa found, however, the probative value of these four markedly similar incidents greatly outweighed any potential for prejudice.
We concur with the judge's decision to sever the trial of charges related to I.R. and her children. The assault upon that victim occurred in her home, not in the street. It was the only incident in which the assault occurred indoors.
At the first trial, the investigating officer described how police gathered DNA from multiple individuals, eventually sending forty-two samples to the State Police laboratory. Defense counsel made no objection to the testimony and no challenge to it is raised on appeal.
During the second trial, however, the detective testified that he was assigned to the case to assist another officer, and that eventually police learned that defendant "was a suspect." As he did in the first trial, the detective went on to explain that multiple buccal swabs were sent to the State Police for analysis as many samples were collected.
Defendant now challenges the admission of the investigating detective's description of the manner in which defendant's DNA came to be sampled, asserting that it violated his right of confrontation. Prior to the trials, Judge DeVesa discussed with counsel on the record the "issue of the encounter between the police and the defendant that ultimately caused his [DNA] sample to be taken," and how it should be approached so as not to violate defendant's right of confrontation. See State v. Bankston, 63 N.J. 263, 271 (1973). It was not anticipated that the detective while testifying would use words such as "suspect."
The State is entitled to proffer evidence that an officer is not acting arbitrarily when collecting evidence. Id. at 268. The State is not, however, permitted to present evidence which even "implies that the police officer has information suggestive of defendant's guilt from some unknown source." State v. Branch, 182 N.J. 338, 352 (2005). "When 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." Bankston, supra, 63 N.J. at 271.
Defendant came to the attention of the authorities when he was arrested for an attempted sexual assault of yet another victim.*fn3 Accordingly, heightened care needed to be taken, lest the detective inadvertently mention that pending charge.
Because the detective's narrative of how the DNA was collected was not objected to at the second trial, consideration of the issue is subject to the plain error rule. R. 2:10-2. In order to prevail, defendant must establish that the error was capable of producing an unjust result. In other words, defendant must show there is a reasonable doubt that the error may have denied him "a fair trial and a fair decision on the merits." State v. Macon, 57 N.J. 325, 338 (1971).
The jury was told at the second trial, as they were told in the first trial, that defendant was one of many whose DNA was sampled. In that context, although the jury could have speculated that defendant became a "suspect" because of evidence of guilt from an unknown source, the fact he was only one of many neutralized the impact. If, for the sake of argument we assume that the speculation occurred, by itself it does not constitute actual error, much less plain error. "'[W]e must consider whether there is reasonable doubt that the jury would have ruled other than as it did'" if the testimony was not admitted. Branch, supra, 182 N.J. at 353 (quoting State v. Irving, 114 N.J. 427, 447 (1989)).
At the second trial, the State presented DNA evidence, an in-court identification of defendant by the victim, and evidence that defendant lived nearby when the assault occurred. I.R. testified that her assailant spoke Spanish. There can be no reasonable doubt that the jury would have convicted in light of the State's strong proofs, without regard to the detective's choice of words. The reference to defendant as a "suspect," one among many from whom DNA was taken, is therefore harmless.
Defendant next challenges the sentence as being manifestly excessive and shocking to the conscience. Judge DeVesa sentenced defendant to seven consecutive terms after thorough consideration of the factors enumerated in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). He articulated his reasons for sentence as follows:
First of all, the criminal episodes in this matter relating to each separate victim were predominately independent of each other. Each criminal episode or each attack on an individual victim involves separate acts of violence or threats of violence against women in our community or in a few cases against children. The crimes were committed at different times and in different locations but for one or two of these crimes where the children were attacked or victimized at the very same time that their mother was being attacked. Each criminal episode therefore involved different victims.
It is well-settled that there should be no free crimes under our system of justice and therefore for the most part the [c]court accepts the prosecutor's argument that these various criminal episodes require consecutive sentences.
Judge DeVesa's well-reasoned sentencing analysis properly applied the principles enunciated in Yarbough. Because of the sheer number of offenses involving eight victims and assaults on five different dates, the sentence does not shock the judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).
As the State concedes, the matter must be remanded for purposes of reconsideration of sentence in light of Natale II, supra, 184 N.J. at 458. We affirm the convictions. We remand for sentencing pursuant to Natale II.