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State v. Rivera

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 17, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LIONEL GUERRERO RIVERA, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-06-2415.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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).

I.

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 wasn't me and I was still saying it wasn't me.

He "didn't even want to believe" he shot Muniz.

Defendant admitted that he lied to the police when initially questioned on May 3, and explained that he did so because he "was on probation" and they "was gonna come pick me up."

The parties stipulated that defendant did not have a permit for the gun he fired.

Defendant's sister, Sharon, testified for the defense that she spoke to Malave approximately a month before trial and Malave told her that she could not recall the events of May 3 because she had been so drunk. Aisha Cardona, Sharon's friend, was with Sharon when Malave made that statement, and she confirmed Sharon's testimony that Malave told her "she was too drunk to remember anything that happened."

II.

Defendant claims the court erred in admitting the statement that he gave to law enforcement officials while he was institutionalized in a psychiatric facility in Puerto Rico. We disagree.

At a N.J.R.E. 104(c) (Miranda)*fn6 pretrial hearing, Wilson testified that on September 10, 2003, she and Detective Perez flew to Puerto Rico, where defendant was "incarcerated" in a "correctional hospital facility."*fn7 Their assignment was to advise defendant of the outstanding arrest warrant in New Jersey for the murder of Muniz and to question him about that crime. Extradition proceedings were not yet commenced.

Wilson did not speak to any doctors or review any medical records at the facility before or after the interview regarding defendant's status, nor did she ask if defendant was receiving any medication. However, she learned after her arrival that defendant had attempted suicide "two days before."

Perez and Wilson met defendant in a conference room in the facility. He recognized them because he had given Wilson a statement on the night of the shooting. Before the interview actually began, defendant's "head [was] down" and he looked at his interviewers only "through the corner of his eye." According to Perez, he told defendant, who was acting differently from the person Perez knew from Camden, that defendant could not "fool" him, and the police needed to talk to him about Muniz's murder, after which defendant sat up and became "outgoing and talkative," as he had been in Camden. Defendant did not appear to be under the influence of drugs or alcohol, and he did not say that he was either depressed or on any medications except for a reference that he put the medicine "under his tongue and then he would throw it out."

Defendant was advised of his Miranda rights, which he acknowledged and waived verbally and in writing. No promises or threats were made in return for defendant's waiver, and defendant never indicated during the interview that he did not want to speak or wanted an attorney present.

Defendant told Wilson and Perez, during an unrecorded pre-interview but after he waived his rights, that he left Camden following the shooting of Muniz because of "threats" made against his life. He also became emotional and cried when he told the officers that his sister had recently been killed in Puerto Rico.*fn8 However, in the view of Wilson and Perez, defendant's emotional state did not prevent him from understanding and responding to questions during the pre-interview, and he was fine by the time the taped interview began.*fn9

When the formal interview began, defendant was sitting "upright [and] erect," made good "eye contact," and "his voice was normal," although he was "a little sad." He seemed to understand, and properly responded to, instructions given and questions asked, and he spoke coherently and freely, and voluntarily answered the questions posed to him. According to Wilson, defendant seemed "relieved" when giving the statement.

A tape of the interview was played for the court at the hearing.

After listening to the tape, the trial judge found no evidence that defendant had suffered from a diminished mental capacity and admitted the recorded statement.*fn10 He ruled that, although defendant was emotional given his sister's recent death, he nevertheless voluntarily gave detailed responses to the numerous questions posed to him. The court found the officers "very credible" and concluded that Perez's brief comment to defendant (apparently about the inability to "fool" him) before the interview began, was neither "improper" nor "particular[ly] coercive." After Perez told defendant that he needed to respond appropriately to the questions, defendant's "demeanor changed" and the interview proceeded.

As to defendant's presence in the "psychiatric facility," the court noted that it had "taken plenty of guilty pleas from people that were in Ancora [Psychiatric Hospital] at the time that the statements were given," and that the fact that individuals were in such a facility "does not make them insane." Rather, the issue was whether defendant was "mentally capable" of voluntarily giving a statement to the police, based on all of the circumstances.

The court specifically found Wilson's testimony credible regarding her observation that there was no indication that defendant was either "under the influence of alcohol, drugs, or anything else that would cloud his ability to give a voluntary statement." Therefore, the court rejected the notion that defendant was mentally unfit to freely and voluntarily give the statement "just because [he was] in a mental facility."

When an individual is interrogated in custody, the questioning is deemed inherently coercive, and Miranda warnings must be given. Miranda v. Arizona, supra, 384 U.S. at 444-45, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706-07. New Jersey also recognizes a privilege against self-incrimination that has been construed as being broader than federal law. State v. A.G.D., 178 N.J. 56, 66-67 (2003). A confession is admissible if the State can prove beyond a reasonable doubt that it was voluntarily given after the defendant gave a knowing, intelligent, and voluntary waiver of the privilege against self-incrimination. State v. Timmendequas, 161 N.J. 515, 613-14 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001); State v. Burris, 145 N.J. 509, 534 (1996); State v. Cabrera, 387 N.J. Super. 81, 99 (App. Div. 2006).

A determination regarding the voluntariness of a statement requires a factual inquiry involving an evaluation of the totality of all of the surrounding circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed. 2d 854, 862 (1973); State v. Reed, 133 N.J. 237, 256-58 (1993); State v. Cabrera, supra, 387 N.J. Super. at 100. In reviewing the trial court's findings regarding the voluntariness of a statement, we must determine only whether those findings were based on sufficient, substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999). If the findings are supported by such evidence, the court's ruling cannot be disturbed. Ibid.; State v. Smith, 307 N.J. Super. 1, 10 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998).

At the evidentiary hearing, conducted as required by N.J.R.E. 104, the judge listened to the tape recorded statement and concluded that defendant gave coherent and detailed responses to the questions asked, thereby indicating that he could understand what was being asked, and was able to clearly respond to those question and to voluntarily waive his right. Given the coherent and detailed nature of the statement (the transcript of which is in the record) and the absence of any indication that defendant's diagnosis or medication affected the voluntariness of the waiver or the statement, we conclude that the State's uncontested proofs*fn11 warranted the conclusion that defendant had the capacity to waive his rights, and knowingly, intelligently and voluntarily did so.

III.

Defendant argues that the court's jury instructions were so defective in several areas as to require reversal. "An essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). Accordingly, the trial judge must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find," State v. Green, 86 N.J. 281, 287-88 (1981), and must include instructions on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. A jury charge cannot "misinform the jury as to the controlling law" and must be "neither ambiguous nor misleading." State v. R.B., 183 N.J. 308, 325 (2005).

Defendant contends that the court erred both in its charge regarding "reckless manslaughter," and in failing to instruct the jury that if it found the shooting to be accidental, defendant had to be acquitted of murder, and the lesser included homicide offenses. Defendant further asserts that the trial court's failure to give a requested instruction regarding the impact of negligent conduct constituted an improper interference with defense tactics and strategy," because it compelled counsel to argue the defense of accident rather than negligence" and prohibited him from arguing that he was "legally accountable for his negligence, but not criminally liable."

In his taped statement, defendant described the argument that took place in front of the Elegante, and said Gabby gave him a gun to hold since Gabby "was gonna fight." Defendant claimed that he held the gun and "had it in the air. I was gonna shoot it and he just pulled my arm. When he [Gabby] pulled my arm that's when I shot." Defendant then explained in more detail that while he was holding the gun, Gabby walked across the street and asked for the gun back. According to defendant, he "took [the gun] out and put it in the air and [Gabby] grabbed my arm. When he pulled my arm I shot it." Defendant reiterated that scenario later in his statement, and conceded that he was the only individual shooting a gun at the time that Muniz was shot. However, he also stated that he did not intend "to shoot anyone specifically."

During the charge conference, the court decided that it would instruct the jury on two lesser-included crimes of murder--aggravated and reckless manslaughter. Defendant asked the judge to also charge the jury on "negligent manslaughter."

However, the Code of Criminal Justice does not provide that a defendant can be criminally responsible for homicide by virtue of mere negligent conduct, and there is no crime of "negligent manslaughter." See N.J.S.A. 2C:2-2b(4); N.J.S.A. 2C:11-4.*fn12 See also Cannel, New Jersey Criminal Code Annotated, comments on N.J.S.A. 2C:11-4 (Gann 2007). Thus, defendant asserts that the jury should have been expressly advised that if he was merely negligent, he could not be convicted, and that he had to be found not guilty if the shooting occurred by virtue of an "accident." He specifically asked the judge to instruct the jury that:

[t]here is no crime if the killing was caused by the negligence of the defendant and the defendant's culpability does not rise to the level of recklessness. If the jury has reasonable doubt as to whether the killing was accidental, it must return a verdict of not guilty on the homicide charges.

The court noted that negligent homicide was explicitly rejected as a crime under the Code, but believed that if the jury concluded that the shooting was an accident, defendant would not be found guilty. The court further noted that it would tell the jury that if all the elements of any given crime were not met, then defendant must be found not guilty. As a result, according to the judge, if the jury concluded the shooting was by accident, the jury would acquit him of committing a homicide. Moreover, the judge permitted defense counsel to argue in summation that because the shooting was accidental, defendant could not be convicted on count one.

During his summation, defense counsel did contend that his client could not be found guilty on count one since the shooting was accidental. Further, defense counsel argued, in summation without objection, that because the shooting was accidental the jury could not convict defendant on either of the lesser-included charges. According to counsel:

Because the detective says: "Wasn't it an accident?"

That's what we're saying to you. Unfortunately, the good friend of my client, the deceased, it was an accident.

What the judge has presented to you is -- he will give you the charge and under Count One there is what we call lesser-includeds. That is: Murder, Aggravated Manslaughter, and Reckless Manslaughter. He will give you the various elements of all of them.

He will also give you the Verdict Sheet. This is the Verdict Sheet you will take back to the jury room to examine and cross off in reference to the guilt or non-guilt of Mr. Guerrero.

Again, Count One deals with whether he purposefully or knowingly caused the death or serious bodily injury resulting in the death of Lizzette Muniz. Not guilty or guilty.

Again, the State has failed miserably in that regard.

The next area is a charge of Aggravated Manslaughter. Guilty or not guilty.

Again, the judge is going to charge you in reference to aggravated manslaughter. Again, this was an accident. My client did not have the mental thought process that he wanted to kill Lizzette Muniz. Did not have that. Did not have that thought process in wanting to kill Lizzette.

What the State is going to argue is a transferred intent type of situation. That does not exist in this case. He was not trying to harm anyone. Anyone.

In fact, if you listen to the tape and you give credence, v[e]racity to what he's saying, he's saying he's trying to avoid that by standing across the street and holding the gun for Gabriel Crespo and it was an accident.

Again, you are going to go over reckless manslaughter. Again, that takes a mental status to do that. Again, that is a not guilty. That does not exist, reckless manslaughter. This was an accident.

Even though the jury Verdict Sheet does not have "Do you find it was an accident?", a not guilty on the three others means it was an accident. That is, you believe what the detective said in her statement and you believe what Mr. Guerrero is saying why the pointing occurred; why this did not happen. [Emphasis added.]

In his charge on murder and the lesser included offenses, the judge expressly stated that defendant contended that the shooting was "accidental," and Muniz's death was "accidental." The judge also noted that unless the State proved all elements beyond a reasonable doubt, including the culpability requirements, the jury had to acquit defendant. In addition, as part of the instructions on causation, the judge told the jury that if the shooting was "too accidental in its occurrence," then the State had not proven causation as required, and that defendant should be acquitted on count one. According to the judge:

Causation has a special meaning under the law. To establish causation, the State must prove two elements each beyond a reasonable doubt.

First, that but for the conduct of the defendant, Lizzette Muniz would not have died;

Second, that Lizzette Muniz' death must have been within the design or contemplation of the defendant. If not, it must involve the same kind of injury or harm as that designed or contemplated.

And must also not be too remote, too accidental in its occurrence, or too dependent on another's volitional acts to have a just bearing on the defendant's liability or on the gravity of his offense.

In other words, the State must prove beyond a reasonable doubt that Lizzette Muniz' death was not so unexpected or unusual that it would be unjust to find the defendant guilty of murder.

And in charging on the lesser-included offenses, the judge detailed the elements including the culpability requirements and need for a volitional act.*fn13

We are satisfied that the charge, as a whole, conveyed the essence of defendant's approach to the question of culpability, that is that if the shooting was the result of an accident, or defendant was merely negligent, he could not be convicted of a homicide. This is particularly true in light of the summation defendant was permitted to make without objection.

In State v. Reyes, 50 N.J. 454, 464-65 (1967), the Supreme Court found no error when the trial court refused to charge the jury that the defendant could not be found guilty of murder because the shooting was accidental. That was because the trial court had instructed the jury on the elements of murder, and told the jury that unless the State proved every element of the crime beyond a reasonable doubt, defendant could not be convicted. Ibid. ("It is evident to us that the jury could not fail to realize, without any specific instruction on the subject, that if it should believe defendant's tale of an accident shooting, it was bound to return a not guilty verdict"). This principle has not changed by virtue of the Code of Criminal Justice. See, e.g., State v. Reed, 211 N.J. Super. 177, 181-83 (App. Div. 1986), certif. denied, 110 N.J. 508 (1988); State v. Curtis, 195 N.J. Super. 354, 369-71 (App. Div.), certif. denied, 99 N.J. 212 (1984), rejecting similar arguments regarding requests to charge "negligent" homicide. Compare State v. Concepcion, 111 N.J. 373, 380-81 (1988) (where the trial judge failed to describe all of the defendant's conduct that led to the conviction and the trial court explained "recklessness" in an "abstract" way, rather than "comparing it with other mental states, such as purposely, knowingly and negligently"); State v. Rodriguez, __ N.J. __ (2008) (dealing with self-defense).

When the charge is compared with defendant's summation to the jury, the defense that because the shooting was an accident, and the judge's reference to the defense defendant offered, we find no basis on which to reverse. The court made clear that, unless all of the elements of the offense, including the required culpability, were proven beyond a reasonable doubt, defendant could not be convicted of murder or any lesser-included offense. In so holding, we also reject defendant's further contention that the jury charge on causation was deficient. While the charge on reckless manslaughter incorporated definitions and principles previously detailed with respect to the greater offenses, we are satisfied that the jury understood the controlling principles and differences with respect to causation. The fact defendant was convicted only of reckless manslaughter suggests that the jury understood that the degree of culpability and/or the causation necessary to convict for the crime of manslaughter is different than that necessary to sustain a murder conviction.

Defendant nevertheless contends that because the court failed to mold "the law to the facts" of the case when re-instructing the jury on reckless manslaughter, his convictions should be reversed. If a jury indicates confusion, a court is "obliged to clear the confusion." State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995).

The jury instructions ended near the end of the day on July 7, 2005, and deliberations began at 3:56 that afternoon, for a short period. They resumed at 9:30 the following morning. Shortly thereafter the jury sent the court a note asking for the "judge's instructions as to each count; i.e., definitions; i.e., difference between aggravated and reckless manslaughter; two listening aides [sic] for tape, if possible." The court and counsel agreed that listening aids for defendant's taped statement would be made available, and that the jury's re-instruction request was "somewhat ambiguous as to whether they want copies [of the charge] or whether they just want the Court to read the instructions again."

The jury was asked whether it wanted "copies of the charges." The jury foreperson responded that the jury wanted "definitions. The differences between [aggravated and reckless manslaughter.]" The foreperson confirmed that all the jury wanted was "exact copies" of the definitions of the relevant offenses the court had read to it the prior day. There was no objection by defense counsel and the jury was provided with the requested written material.

Subsequently, the jury indicated that it had reached a verdict. After the jury announced its verdict of guilty of reckless manslaughter, the jurors were asked to raise their hands if they disagreed with it as read by the foreperson. One juror raised her hand and indicated that she disagreed with the verdict regarding reckless manslaughter because she believed "it was an accident." After insuring that the jurors agreed with the remainder of the verdict, the judge sent the jury back to the jury room and told it to "await further instructions." While the court and counsel were discussing what further to charge, the jury sent out a note indicating that the juror in question "now fully understands the wording of the Reckless Manslaughter charge and now agrees with the others making the reckless charge unanimous as originally stated."*fn14

However, the court instructed the jury, which was brought into the courtroom for further instructions, that it had been instructed to wait for the instruction rather than to resume deliberations. As a result, the judge gave the jury a charge regarding the need for unanimity, and then sent the jury out to deliberate again. Defendant did not object to this procedure.*fn15

Approximately ten minutes later, the jury sent out another note indicating that it had reached a unanimous decision, and thereafter repeated that defendant was guilty of reckless manslaughter. The jury was then individually polled, and all jurors announced agreement with the verdict. Again, defendant raised no objection.

We find no basis to upset the verdict in light of anything that occurred in response to inquiries from the deliberating jury or as a result of the responses to its communications.

IV.

As already noted, in his summation, defense counsel relied on his client's statement in arguing that the shooting was accidental. He also attempted to raise questions regarding the credibility of Malave and Cabrera. The State responded by references to portions of defendant's recorded statement that corroborated Cabrera's and Malave's testimony. The prosecutor also argued that the exculpatory portions of defendant's statement were not believable, and that the testimony of Cabrera and Malave was credible.

During its charge, the court instructed the jury that

[i]n offering the statement of the defendant, the party offering the statement, in this case the State, is not bound by the entire contents of the statement. And you as the jury need not accept all of the statement as being true.

The State is not automatically bound to adopt as true that part of the statement that is self-serving or tends to absolve the defendant.

However, you should consider the entire statement and the circumstances in which it was made as well as all other evidence in this case and then give to that statement or any portions thereof such weight and credibility as you think it is entitled to receive.

That it is in your sole and exclusive province as finders of the facts.

Defendant claims that the judge undermined his accident defense by characterizing his statement as "self-serving" and thereby unreliable and untrustworthy. However, we find no reversible error even though given over defendant's objection, because it was consistent with State v. Parker, 33 N.J. 79 (1960). In Parker, as here, the trial judge instructed the jury that the State was "not bound to adopt as true that part of the statement which exculpates [the defendant] or is self-serving," where the State proves otherwise. Id. at 88. The charge given in this case stated essentially the same.

V.

Defendant argues that the court erred in denying his motion for a mistrial made after a State's witness testified that defendant was on probation at the time of the shooting.

A motion for a mistrial should be granted only in a situation which would otherwise result in a manifest injustice. State v. DiRienzo, 53 N.J. 360, 383 (1969); State v. Hogan, 297 N.J. Super. 7, 14 (App. Div.), certif. denied, 149 N.J. 142 (1997). A reviewing court should defer to the trial court's decision, State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000), since the trial court is in the best position to determine the effect of the allegedly prejudicial comment. Absent an abuse of that discretion, or proof of actual harm to the defendant, the trial court's refusal to declare a mistrial should not be reversed on appeal. State v. LaBrutto, 114 N.J. 187, 207 (1989); State v. Hogan, supra, 297 N.J. Super. at 15.

Wilson testified on direct that, as the result of her investigation following the shooting, she began to look for defendant as a possible suspect. In describing the efforts the police undertook to find defendant, Wilson stated that law enforcement officials "made several attempts by going to the home, contacting his probation officer." Defendant immediately objected, and the prosecutor asked that the jury should "be told to disregard that [comment.]"

After the jury was excused, defense counsel sought a mistrial, arguing that the reference to defendant being on probation was "so egregious and prejudicial . . . that [defendant] could no longer have a fair trial." Although the prosecutor agreed that this statement should not have been made, she argued that it was not her intent to elicit that testimony, and that "a curative instruction" would resolve any prejudice to defendant. Moreover, the prosecutor argued that since defendant admitted, in the statement he gave to Wilson in Puerto Rico, that he was on probation, there was little additional prejudice from Wilson's comment.*fn16 Defense counsel noted, however, that that portion of defendant's statement referring to his probationary status could be redacted. The prosecutor responded that the relevant portion of defendant's statement should not be redacted since defendant relied on his probationary status in explaining why he initially lied to the police when questioned immediately after the shooting.

The court decided to give the jury a curative instruction that it must "totally disregard" Wilson's comment. The court further ruled that defendant's statement need not be redacted and that another limiting instruction would be given when the tape of defendant's statement was played to the jury.

When the jury returned, the court reminded it of Wilson's comment regarding defendant's probationary status, and informed the jury that it could not attach any significance whatsoever to the comment about the defendant's probation officer. It is at this point in the case totally irrelevant to the case, so you'll have to completely blot it out of your minds as though it was never said and attach no thinking one way or the other in regard to it. So, please, if you will, I know you will follow the Court's instructions, that has no part in this case and you must totally put those words out of your mind, and I thank you for your cooperation and attention.

The direct examination of Wilson then continued and eventually the tape of defendant's statement was played for the jury. The court then reminded the jurors that defendant had referred to his probationary status in his statement, but that defendant had done so in explaining why he initially said what he did to the police because he "was afraid" they were "going to [] pick [him] up." The judge then informed the jury that, although he allowed the jury to hear defendant's reference to the probationary status,

[t]he fact the comment was made should not be given any significance by you. There should be no thoughts whatsoever that because the defendant indicated he was on probation that he is a bad person. No significance whatsoever should be attached to that statement, and beyond that, that is what we call a limiting instruction. You may only consider it for the purpose of context and, therefore, the defendant's explanation as to why he took certain action. No speculation or any thought should be given to any reason why the defendant was on probation.

Anyone who understands the meaning of probation would understand that defendant, who did not testify, had been convicted of some type of offense, although a person with such understanding would also usually believe that those who commit crimes of violence go to jail. In any event, Wilson's reference to probation should not have been made. However, the trial judge twice instructed the jury that it could not consider the reference. While the judge's comments highlighted that defendant had been on probation, we note that the jury heard defendant's unredacted statement in which he explained that he was initially not truthful with the police because of his probationary status, and defendant does not argue on appeal that this portion of his statement should have been redacted. This fact supports our conclusion the reference by Wilson to defendant's status on probation was harmless, and the motion judge did not abuse his discretion in denying the mistrial.

VI.

During cross-examination, Malave was confronted with her taped statement, in which she had claimed that during the ongoing argument outside the Elegante, defendant "just shot to the ground." Malave responded that defendant did not shoot "to the ground," and called her statement "a lie" in that respect. Defense counsel then pointed out that, despite that portion of her statement, Malave testified at trial that defendant pointed "a gun at somebody." Later, Malave further conceded that she did not identify defendant as the shooter during her initial interview shortly after the shooting.

Defense counsel then asked Malave how she could have identified defendant as the shooter, given that she was admittedly drunk at the time of the shooting and defendant was standing across the street from her. Malave responded that she saw defendant as she crossed the street, but defense counsel pointed out that she had not stated that before. After Malave responded that she "said it now," defense counsel asked if she was "making this up as [she] goes along," which Malave denied.

During redirect, the prosecutor referred to the taped statement Malave eventually gave the police and sought to play it for the jury. Defendant objected, arguing that the prosecutor was improperly "trying to refresh [Malave's] memory." The prosecutor responded that since defense counsel had accused Malave of a "recent fabrication," her entire taped statement should be admitted pursuant to N.J.R.E. 607, and the judge agreed.

We find no abuse of discretion in permitting the tape with the prior consistent statement to be played to the jury. See N.J.R.E. 607. However, even though the judge permitted Malave's entire taped statement when only a portion of her testimony was challenged as fabricated, and N.J.R.E. 607 permits the introduction of a prior consistent statement only if there is a suggestion of "recent fabrication," we find that any error as to the scope of the admission cannot be said to require a new trial. Moreover, her consistent initial report to the police on May 3, 2003, had been noted as a basis for the trip to interview defendant in Puerto Rico.

VII.

The other issues warrant no comment, see R. 2:11-3(e)(2), other than to say the sentence was imposed after the Supreme Court decided State v. Natale, 184 N.J. 458 (2005). We have already noted, defendant was on probation at the time of this shooting.

The conviction and sentence are affirmed.


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