November 21, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE A. AGRON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, 03-06-2075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2008
Before Judges Stern, Payne and Waugh.
Tried to a jury, defendant was convicted of two counts of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3a(1) and (2) (counts one and two); attempted murder, N.J.S.A. 2C:5-1, 2C:11-3a(1) and (2) (count three); conspiracy to commit murder, N.J.S.A. 2C:5-2 (count four); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count five); unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count six); and hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1) (count eight). Defendant was sentenced to consecutive terms of life imprisonment for the murder convictions, with "85% of [each] sentence" to be served "before being eligible for parole." The other convictions resulted in concurrent sentences or were merged.
On this appeal, defendant argues:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF THE PROSECUTOR'S ELICITATION OF TESTIMONY DURING CROSS-EXAMINATION OF THE DEFENDANT INDICATING THAT A NON-TESTIFYING INDIVIDUAL WHO HAD BEEN INVOLVED IN THE SHOOTING INCIDENT IN QUESTION HAD GIVEN A STATEMENT TO THE POLICE WHICH INCULPATED THE DEFENDANT.
POINT II: THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING THE DEFENDANT'S ORAL STATEMENTS ALLEGEDLY MADE SINCE IT ONLY REFERENCED THE STATE'S CONTENTIONS AND OMITTED ANY REFERENCE TO THE DEFENDANT'S CONTENTIONS RELATING THERETO. POINT III: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING CONSPIRACY TO COMMIT PURPOSEFUL/KNOWING MURDER INTO COUNTS I AND II CHARGING PURPOSEFUL/KNOWING MURDER. POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, ESPECIALLY WHEN VIEWED IN CONJUNCTION WITH THOSE SENTENCES RECEIVED BY EQUALLY CULPABLE CO-DEFENDANTS.
We affirm the convictions, but merge the unmerged conspiracy to commit murder conviction on count four into the murder convictions, and remand for resentencing on the murder convictions.
According to the State's proofs, defendant and co-defendants Angel Mendoza and Juan Salas were involved in an attempt to "clear the block" around Sixth and Vine Streets in Camden of competing drug dealers. Defendant took a gun from the car trunk of his Uncle Willie Perez and told his friend, Joseph Quinones, to "just get out of here." Within three minutes after leaving the scene, Quinones heard gunshots behind him.
A total of fifty-seven shells were discovered at the scene. Defendant, Mendoza, and Salas all had firearms. Quinones identified defendant as being in possession of a Smith & Wesson pistol linked to eight of the shells were found at the scene. As a result of the shootings, Jabbar Lee and Richard Williams were killed and David Williams was critically injured.
The following day, defendant went to the prosecutor's office "as the result of the conversation" he had with the guard at his building. According to defendant, who testified at the trial, he was told that someone at the prosecutor's office was interested in speaking to him. He waited about an hour and a half and no one came to question him, so defendant left the prosecutor's office. On cross examination, the prosecutor elicited testimony that he really went to the prosecutor's office because he was under the impression that his "Uncle Willie" had implicated him in the shootings. The following day, representatives of the Prosecutor's Office went to defendant's apartment and asked him if he wanted to come in for questioning voluntarily. Defendant testified that he agreed to go, but only because he felt that "I had to go down there or it was going to be forcible and that was it."
Defendant gave two recorded statements to representatives of the Prosecutor's Office. In the first, he testified that he and Quinones "were in front of North Gate apartments... and they heard the gunshots and didn't know anything more about it other than that." The investigators believed that defendant knew more than he was revealing and continued to question him. In his second statement, defendant admitted that he was part of a "plan" to "clear the block" of rivals in the drug trade, and "get them off the corner" by "trap[ping]... to kill as many of them" as possible and that he was involved in the shootings, but that Richard Williams, one of the victims, fired first.
We reject the contentions addressed to the convictions, and conclude that only the following discussion is warranted in a written opinion. R. 2:11-3(e)(2).
Defendant argues that the following exchange with the prosecutor during his cross examination improperly prejudiced him and that the trial judge should have declared a mistrial:
Q: And you told this female prosecutor what you were there for; correct?
Q: That you had information about a homicide; correct?
Q: And that you wanted to speak to an investigator; correct:
Q: Did you name the investigator that you wanted to speak to?
A: No. I didn't know who wanted to speak to me.
Q: But you knew somebody wanted to speak to you; right?
Q: And that's because your Uncle Willie had already spoken to the investigators; wasn't it?
Q: And you knew that Uncle Willie had implicated you in this; didn't you?
Q: So you were going to try to straighten this out; right?
A: I was going there and tell them the truth. That was it.
Defendant's counsel did not object during this questioning, but was granted a sidebar shortly thereafter. He objected to the questioning and requested a mistrial, stating:
The prosecutor, during her examination, and she said it quite fast, preventing me from objecting, but she said that the uncle had implicated him and it's improper. It's improper because now the jury has heard information that's come from the prosecutor's mouth that there is other evidence out there that implicates my client to the homicide.
A mistrial was requested. The defendant "acknowledges" that a "mistrial is an extraordinary remedy which should only be employed to prevent an obvious miscarriage of justice," State v. Rechtschaffer, 70 N.J. 395, 406 (1976), but contends a limiting instruction would have been ineffective as "the damage was done," and his motion for mistrial should have been granted.
The State argues that "[t]he trial court properly denied defendant's mistrial motion as the reference was within the scope of cross-examination rebuttal, and harmless beyond a reasonable doubt as it was truly momentary, of obviously minimal value considering the source and context at trial, and given the other overwhelming evidence of defendant's guilt including defendant's own taped confession, his oral admissions, and the detailed corroborating testimony of defendant's uninvolved, nonindicted friend" Quinones. The State also notes that defendant claimed he went to the prosecutor's office "on his own" and that the questioning regarding "Uncle Willie" was an attempt "to elicit the real reason that defendant wanted to speak to the police." Further, the State contends that "the question addressed only defendant's state of mind as to why he allegedly went to the Prosecutor's Office that day, and... [it] had not elicited any details about what the uncle specifically had said."
We find no abuse of discretion by virtue of the trial judge's denial of a mistrial. See State v. Harvey, 151 N.J. 117, 205 (1997); State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995) (mistrial is an "extraordinary remedy" "to prevent an obvious failure of justice.") The defendant's objection to the offensive question was not immediate, and when made, defendant declined to accept a limiting instruction, which could have remedied any prejudice. See Pressler, Current N.J. Court Rules, comment 5.1 on R. 3:20-1 (2007). Moreover, defendant had testified at length about his visit to the prosecutor's office after the shootings and claimed that he went to see the prosecutor after speaking with the guard at his building. The prosecutor's question was designed to attack defendant's credibility by showing he did not report out of civic responsibility and had a different motive for going to the prosecutor's office. While the phrasing of the question was inappropriate, it was also made clear to the jury that "Uncle Willie" had a motive to lie in order to exculpate himself. Accordingly, we find no basis on which to reverse the convictions.
Defendant also argues that the jury charge was flawed in that "it only referenced the State's contentions and omitted any references to the defendant's contentions" relating to defendant's oral statements to police. In other words, the judge did not remind the jury of defendant's attack on the credibility of his statements. However, during the charge conference, defendant affirmatively sought the language used in the jury charge and argued that the charge should be limited to the fact "the Miranda warnings were given...." At defendant's request, the trial judge reserved for development on defendant's summation the basis for his claim that the recorded statements were involuntary and, therefore, not credible. The charge was given as defendant had requested, and there was no objection to the instructions.
Count one alleged the murder of Richard Williams, and count two alleged the murder of Jabbar Lee. Count three concerned the attempted murder of David Williams, and count four alleged that defendant, Mendoza and Salas conspired to commit murder. The conspiracy count did not identify the person or persons who were the object of the conspiracy,*fn1 and defendant asserts that convictions should have merged into the murder convictions. As we have said, "a defendant cannot be convicted both for conspiracy and for a substantive offense if the objectives of the conspiracy are limited to consummation of that same substantive offense." State v. Rodriguez, 234 N.J. Super. 298, 304 (App. Div.), certif. denied, 117 N.J. 656 (1989).
The State agrees that conspiracy would merge if the conspiracy were only to commit the murders that resulted, but contends that "the uniqueness of the present case is found in the fact that the conspiracy here was not to murder only the particular two victims defendant killed ― more victims were intended by defendant, and attempted in his actions, so that the'contemplated crimes' went beyond the'consummated crimes.'" The State supports this contention by pointing to defendant's oral statements to police where he "described how the plan was to'trap everybody in' who would try to run away for their lives, and kill as many of them as they could."
The problem with the State's position is that the jury instructions did not address the scope of the conspiracy as extending beyond the murders of Williams and Lee, or those murders and the attempted murder for which defendant was also convicted and sentenced, and the verdict sheet merely asked if defendant "did conspire with Juan Carlos Salas and/or Angel M. Mendoza and/or others to commit the crime of murder." It may well be, as defendant acknowledged in his statement, that the conspiracy encompassed a plan to trap everyone on the block if more than the victims were there, and to reassert control over the block for his uncle's drug dealing, but there is no basis for concluding the jury so found. See State v. Hill, 182 N.J. 532, 548-50 (2005). We hold in these circumstances that the conspiracy conviction must merge with the murder convictions.
Finally, defendant argues that his sentence is "manifestly excessive, especially when viewed in conjunction with those sentences received by equally culpable co-defendants." Defendant specifically complains:
In the present case, the defendant received two consecutive life imprisonment terms with 85 percent parole disqualifiers, resulting in an aggregate parole disqualifier of [127-1/2] years.*fn2 Co-defendant Salas was found guilty as charged by a jury and subsequently sentenced to an aggregate 70 year term with an 85 percent parole disqualifier (59-1/2 years). (See Presentence Report at Specific Factors Relative to Offense Section). Incredibly, co-defendant Mendoza, who pled guilty to aggravated manslaughter, received a 25 year term with an 85 percent parole disqualifier (21 and 1/4 years).
In considering the issue, we note that our role is limited. Generally we may:
(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience. [State v. Roth, 95 N.J. 334, 364-365 (1984).]
Moreover, "a sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter. However, grievous inequities in sentences destroy a prisoner's sense of having been justly dealt with, as well as the public's confidence in the even-handed justice of our system." State v. Hicks, 54 N.J. 390, 391 (1969) (citations omitted). "'[T]here is an obvious sense of unfairness in having disparate punishments for equally culpable perpetrators.' The purpose of the guidelines is to promote fairness and public confidence in the'even handed justice of our system.' The question therefore is whether the disparity is justifiable or unjustifiable." State v. Roach, 146 N.J. 208, 232-233 (1996) (citations omitted).
Roach does not require that all co-defendants receive the same sentence, but it does require that the: trial court must determine whether the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria. The court should then inquire into the basis of the sentences imposed on the other defendant. It should further consider the length, terms, and conditions of the sentence imposed on the co-defendant. If the co-defendant is sufficiently similar, the court must give the sentence imposed on the co-defendant substantive weight when sentencing the defendant in order to avoid excessive disparity. Sentencing based on such added considerations will accommodate the basic discretion of a sentencing court to impose a just sentence on the individual defendant in accordance with the sentencing guidelines while fulfilling the court's responsibility to achieve uniform sentencing when that is possible. [Id. at 233-34.]
On review of a sentence, we "may not substitute [our] judgment for that of the trial court" and are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. Natale, 184 N.J. 458, 489 (2005).
Defendant contends that Mendoza was the one who "formulated the plan" and sought the enlistment of defendant to carry it out. Additionally, defendant contends that, with respect to Salas, "the court essentially found the same aggravating factors as it found to exist with respect to defendant," and, therefore, defendant's ineligibility term should not be 67 years more than Salas'. Additionally, defendant argues that, regardless of the disparity in sentences, "a 30 year parole disqualifier would still have served the interest of justice and the protection of society by insuring the defendant would not even be released until approximately 58 years old." Defendant contends that such a punishment would be sufficient and would "provide the defendant with some incentive to rehabilitate himself within the prison system[.]"
The State argues that defendant "murdered[ed] two men, nearly kill[ed] a third, and generally terroriz[ed] a residential street" and that the sentence he received cannot be deemed "manifestly excessive." The State also points to defendant's "leadership role in the crimes." It further argues that the sentence defendant received was "eminently reasonable in relation to his co-defendants, one who pled guilty to aggravated manslaughter within two months of indictment to a twenty-five-year NERA term, and the then seventeen-year-old co-defendant who was convicted by a jury before the same judge and sentenced for his first indictable convictions to consecutive forty years' NERA and thirty years with a thirty-year parole disqualifier."
The defendant is entitled to have his disparity claim considered by the judge who handled the case and heard all the evidence relative to all the defendants. The sixty-seven year disparity in the parole ineligibility terms between defendant and Salas is particularly troublesome notwithstanding the differences in age and criminal record. We are advised that Mendoza entered a negotiated plea to aggravated manslaughter within two months of indictment. The sentencing judge must at least explain the justification for the different sentences imposed.
Moreover, while the imposition of consecutive terms is warranted as defendant was responsible for the murders of two individuals, State v. Carey, 168 N.J. 413, 423 (2003), the fact is that defendant will not be eligible for parole for 127-1/2 years, in November 2129 considering jail credits. While consecutive sentences for two murders are involved, the sentencing judge must recognize that he, in fact, imposed a sentence of life imprisonment without parole and analyze the relevant factors including whether the objectives were "predominantly independent of each other" and committed at the same time and in the same location. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986).*fn3 See also State v. Candelaria, 311 N.J. Super. 437, 454 (App. Div. 1998). Moreover, "successive terms for the same offense should not ordinarily be equal to the punishment for the same offense." Yarbough, supra, 100 N.J. at 644. Specifically, the trial judge should consider imposition of consecutive sentences which would provide for an aggregate parole ineligibility term of approximately 68 to 70 years (based on two consecutive specific term sentences with NERA), which would permit consideration of parole eligibility at approximately age 92 to 94. These questions should be fully developed at the remand hearing.
The judgment of conviction is affirmed. The matter is remanded for merger of the conspiracy count and reconsideration of sentence consistent with this opinion.