On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-06-2415.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2008
Before Judges Stern, C.S. Fisher and Kestin.
Defendant was convicted of reckless manslaughter as a lesser included offense of murder, and of unlawful possession of a firearm.*fn1 He was sentenced to a nine-year term in the custody of the Department of Corrections on the manslaughter conviction with eighty-five percent to be served without parole eligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was also given a four-year concurrent sentence on the unlawful possession of a weapon conviction.*fn2 On this appeal defendant raises the following claims:
POINT I THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S REFUSAL TO INSTRUCT THE JURY ON THE LAW THAT PROVIDED A DEFENSE TO THE CHARGES NOTWITHSTANDING THE FACT THAT THERE WAS A RATIONAL BASIS IN THE EVIDENCE TO SUPPORT THAT DEFENSE.
POINT II THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE AFTER THE JURY ASKED FOR A RE-INSTRUCTION ON THE LAW OF RECKLESS MANSLAUGHTER. (Partially Raised Below)
POINT III THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO PRESENT A DEFENSE AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S IMPROPER INTERFERENCE WITH DEFENSE TACTICS AND STRATEGY.
POINT IV THE DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION BY THE TRIAL COURT'S ERRONEOUS, PREJUDICIAL, AND MISLEADING INSTRUCTION ON THE LAW OF CAUSATION. (Partially Raised Below)
POINT V THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO DECLARE A MISTRIAL AFTER THE JURY WAS INFORMED THAT THE DEFENDANT HAD BEEN ON PROBATION AT THE TIME OF THE SHOOTING.
POINT VI THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF A STATE'S WITNESS'S PRIOR CONSISTENT STATEMENT.
POINT VII THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S PREJUDICIAL JURY CHARGE ON "SELF-SERVING" STATEMENTS.
POINT VIII THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT DURING SUMMATION. (Not Raised Below).
POINT IX THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAIVED HIS MIRANDA RIGHTS VOLUNTARILY AND KNOWINGLY.
POINT X THE DEFENDANT'S SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.
We find the contentions to be without merit and that only the following comments are warranted in a written opinion. R. 2:11-3(e)(2).
Lizzette Muniz was shot and killed while standing on a street outside a nightclub in Camden during the early morning hours of May 3, 2003. The investigation that led to defendant's convictions uncovered the following evidence.
Luis Ortiz and Muniz*fn3 had lived together, "like a husband and wife," for seven years before the shooting. During the early morning hours of May 3, 2003, they were home when Muniz's brother Luis arrived. Luis Muniz was "screaming" that their friend Junito had been in an argument and was bleeding. Her brother then drove Muniz to the location so that she could assist him and "bring Junito back." Junito had left the scene in his car, but Luis Muniz found him, and Lizzette Muniz went with Luis Muniz to meet him. When they met up with Muniz's friend, Joanna Rivera, Joanna told Muniz about an earlier fight outside the Sunshine Bar between Junito and another friend named June. As they were talking, a gunshot was fired. Joanna did not know who shot the gun, but she and Muniz then attempted to get Junito and Joanna's boyfriend, "Confessor" or "Fess," to leave the scene before the situation became more dangerous. Junito, Confessor, Joanna and Muniz drove to the Elegante Club where Confessor got into "another argument." As Joanna and Muniz walked towards Confessor and Junito, hoping to convince them to leave, Joanna heard another shot fired from behind her. She saw Muniz fall down with "blood coming out [sic] her face," but did not see who shot her.
Subsequently Joanna and Confessor went to Ortiz's house and informed him that Muniz had been shot. They took him to the hospital to which Muniz had been taken.
Madeline Malave, also known as "No-No," was a friend of Muniz. On May 3, 2003, she was at a club, Obsessions, with two friends, Marisol, also known as "Maury," and Jessica. Malave conceded that she was drunk. At some point, the three women went to the Elegante Club which was nearby.
When she arrived, Malave saw a large crowd of approximately twenty individuals arguing in front of the Elegante. One of the involved individuals she noticed was Junito. Malave also saw defendant, whom she had known for a couple of years as "Lionel," fire a gun towards the crowd. Malave identified defendant in court as the individual who shot Muniz. After the shooting, the crowd scattered. Malave saw defendant run away from the scene. Malave conceded that she subsequently told defendant's sister, Sharon Guerrero,*fn4 and his mother that she was too drunk to remember the events of May 3, 2003.
Marisol Cabrera testified that she and Malave were at the Elegante Club at the time of the shooting and had been "drinking." Although she was "feeling nice," Cabrera testified she was not "sloshed." Cabrera saw an argument going on in front of the Elegante, and noticed that her friend Muniz was present.
Muniz and Cabrera "gave each other a kiss," and Muniz told Cabrera that she was there to "pick somebody up." Cabrera told Muniz to "go home," fearing that "something is going to happen." As the two women walked away from each other, Cabrera heard someone yelling to kill "that N . . . from Philly" "F . . . him; he from Philly," "kill him," and then heard a gunshot. After she heard the shot, Cabrera looked across the street and saw defendant who she knew as "Lionel," standing alone, with a gun in his hand. Defendant's arm was extended and the gun was pointed "straight ahead" "towards the crowd." Cabrera saw defendant flee from the scene, and she ran to Muniz. Cabrera stated that she "d[id]n't recall" telling defendant's sister or mother that she was "too drunk" to remember what occurred that night. Cabrera also acknowledged telling Investigator Wilson that she did not know who shot Muniz, but did so because she did not want "to get involved" in the investigation and also because defendant was present at the Detective Bureau at the time.*fn5
On cross-examination, Cabrera admitted that she had had sexual relations with defendant but that had occurred only "once" and it was "long ago." She denied that defendant told her he did not want to see her again, or "spurned" her.
Robert Chew, a Camden police officer, received a message over his radio about the shooting and proceeded to the area. He saw a large crowd outside the Elegante; as he approached, the crowd ran towards him, informing him than an individual had been shot. He called for assistance and then tended to Muniz, who had blood pouring from her head.
John Denmark, a crime scene investigator for the Camden County Prosecutor's Office, arrived at the scene. He noted a blood stain on the street in front of the Elegante Club, and found a discharged shell casing across the street. No fingerprints were found on the casing, and no gun was found.
Diane Wilson, an investigator with the Prosecutor's Office Homicide Unit, interviewed Cabrera, who initially told Wilson that she did not know who shot Muniz or where the shots came from. Subsequently, Wilson conducted a second interview with Cabrera, and Cabrera told Wilson what had happened and identified defendant as the shooter.
Wilson also spoke with Malave, who claimed that she had not seen the shooter. In fact, Malave told police that she was too drunk and did not know what had happened. Malave claimed at trial that she did not tell Wilson what she saw because defendant was present at the Detective's Bureau at the time, and because she had previously been involved in an unrelated "minor incident" with Camden police. Subsequently, the police interviewed Malave at her home after which she gave a taped statement in which she provided the version of the events to which she testified at trial.
Wilson also interviewed an individual who identified himself as Chino Garcia. Unbeknownst to Wilson at that time, this individual was actually defendant, whom Wilson identified in court. Defendant told Wilson that while he was with some friends in the area of the Elegante an argument broke out, so he went to Philadelphia. He then returned to the area, where he was talking to Junito and others including a man known as "Gabby." Another argument ensued and Gabby "shot [a gun] up into the air." After another shot was fired, the interviewee said he ran off, but returned after the scene had cleared.
On August 14, 2003, after obtaining the second statements from Malave and Cabrera, a warrant for defendant's arrest was issued. On September 9, 2003, Wilson learned that defendant had been apprehended and was in custody in Puerto Rico. She went there with Detective Rafael Perez of the Camden Police Department the following day. Defendant was in a correctional psychiatric facility. After being advised of and waiving his rights, defendant gave a taped statement. The tape was played for the jury.
In the statement, defendant claimed that he, Joel Crespo (also known as "Pito"), and Gabriel Crespo ("Gabby") were walking towards the Elegante when Gabby was told that "the dude that stuck him up" was in the vicinity. Gabby approached the individual and a shot was fired. Gabby then returned and, since he intended to fight another "dude from Philly" and "was trying to defend Junito," gave defendant a gun he possessed. There was a crowd in the area. The fight never occurred, so Gabby returned to defendant and asked for his gun back. According to defendant, as he took the gun out, he "had it in the air" and Gabby "pulled [defendant's] arm." According to defendant, "[w]hen [Gabby] pulled my arm that's when I shot." Defendant believed that he had fired the gun into the air and therefore could not believe his shot had killed Muniz. Defendant and Gabby then left the scene. According to defendant's statement:
I was like I didn't shoot, cause I wasn't shooting over there. I was not trying to shoot at nobody. I shot in the air and I couldn't believe it was me. I was like it ...