On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-07-1673.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2008
Before Judges Wefing, R. B. Coleman and Lyons.
Following a jury trial conducted between May 10 and July 7, 2005, defendant Christopher Tirado was found guilty of nine counts of an eleven-count indictment. The jury found defendant guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1),(2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon, a .380 caliber semi-automatic pistol, for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); second-degree eluding, N.J.S.A. 2C:29-2(b) (count five); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count six); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count seven); third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count eight); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (count nine). The court granted the State's motion to dismiss counts ten and eleven, which had been severed earlier with the parties' consent.
At the sentencing hearing, the court merged counts three (robbery) and four (possession of a weapon for an unlawful purpose) into count one (murder) and sentenced defendant to life imprisonment with eighty-five percent (sixty-three and three-quarters years) to be served without parole, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one. The court further imposed consecutive terms of ten years with five years of parole ineligibility on count five, five years with two and one-half years of parole ineligibility on count six, and five years with two and one-half years of parole ineligibility on count eight. The court also imposed concurrent terms of twenty years imprisonment with ten years of parole ineligibility on count three, five years with two and one-half years of parole ineligibility on count seven, and eighteen months with nine months of parole ineligibility on count nine. The aggregate sentence is life in prison plus twenty years, with seventy-three and three-quarters years of parole ineligibility. In addition, defendant was ordered to pay $700 to the Victims of Crime Compensation Board (VCCB),*fn1 $525 to the Safe Neighborhoods Services Fund and $430 to the Law Enforcement Officers Training Fund.
On appeal, the defendant raises the following arguments for our consideration:
POINT I REFERENCES TO THE DEFENDANT INVOKING HIS RIGHT TO AN ATTORNEY WHICH OCCURRED DURING THE DIRECT AND REDIRECT TESTIMONY OF DETECTIVE KOHLES AND DETECTIVE KEARNEY VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT AND MIRANDA RIGHTS UNDER FEDERAL AND NEW JERSEY STATE LAW.
POINT II THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE OF THE IMPROPER CREDIBILITY ASSESSMENTS GIVEN BY DETECTIVE KOHLES, DETECTIVE KEARNEY, AND DETECTIVE SUAREZ.
POINT III THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY PRECLUDING THE DEFENDANT FROM ADMITTING EVIDENCE OF THIRD-PARTY GUILT.
POINT IV THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION TO SEVER COUNTS FIVE, SIX, AND SEVEN OF THE INDICTMENT.
POINT V ADMITTING EVIDENCE OF THE OCTOBER 16, 2001, BROOKLYN NEW YORK ROBBERY OF JACK HERARI'S BMW CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION BECAUSE THE STATE FAILED TO PROVE THE FOUR PRONGS OF THE STATE v. COFIELD TEST.
POINT VI THE DEFENDANT'S ORAL AND WRITTEN STATEMENTS SHOULD HAVE BEEN SUPPRESSED BECAUSE OF THE FAILURE BY DETECTIVE KEARNEY AND DETECTIVE KOHLES TO ADVISE THE DEFENDANT OF HIS TRUE STATUS AS A "SUSPECT" IN THE CRIMINAL INVESTIGATION.
POINT VII DETECTIVE KOHLES' TESTIMONY CONCERNING "BLOODFLOW" CONSTITUTED AN IMPROPER "NET OPINION" AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
POINT VIII TESTIMONY THAT A "JUDGE" WAS INVOLVED IN THE PROCESS OF ARRESTING THE DEFENDANT DEPRIVED DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
POINT IX THE TRIAL COURT COMMITTED PLAIN ERROR BY INSTRUCTING THE JURY NOT TO CONSIDER THE CHARACTER OF THE DECEASED IN DETERMINING THE "INNOCENCE OR GUILT OF THE DEFENDANT" (NOT RAISED BELOW).
POINT X THE PROSECUTOR'S EFFORT TO USE THE SUPPRESSED LETTER TO REFRESH MS. BESSANOVA'S RECOLLECTION VIOLATED THE TRIAL COURT'S EVIDENTIARY RULING AND THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE PROSECUTOR TO DO SO.
POINT XI THE AGGREGATE CUSTODIAL SENTENCE OF LIFE PLUS 20 YEARS WITH 733/4 YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION, AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY v. WASHINGTON AND STATE v. NATALE.
A. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING PERIODS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTIONS ON COUNTS ONE, FIVE, SIX, AND EIGHT THAT EXCEEDED MINIMUM PAROLE INELIGIBILITY PERIODS.
B. IMPOSITION OF BASE SENTENCES THAT EXCEEDED THE STATUTORILY AUTHORIZED TEN (10) YEAR TERMS FOR CRIMES OF THE FIRST DEGREE, FIVE (5) YEAR TERMS FOR CRIMES OF THE SECOND DEGREE, AND THREE (3) YEAR TERMS FOR CRIMES OF THE THIRD DEGREE WERE MANIFESTLY EXCESSIVE.
C. THE SENTENCES IMPOSED ON THE DEFENDANT'S CONVICTIONS VIOLATED BLAKELY v. WASHINGTON AND STATE v. NATALE.
D. THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS ONE, FIVE, SIX, AND EIGHT CONSECUTIVE TO EACH OTHER.
We reject defendant's assertions of reversible error, however, we remand solely for correction of the monetary penalty imposed for VCCB.
The facts pertinent to this appeal are derived from the testimony at the hearings on defendant's motion to suppress evidence and at the trial. At approximately 3:00 a.m. on October 2, 2001, Lieutenant Luke Guglielmo of the Fort Lee Police Department received a radio call from dispatch about shots fired and "a person down" on Slocum Way. On his arrival at the scene, Lieutenant Guglielmo saw a body lying on the ground with three gunshot wounds to his cheek and temple area. The officer retrieved the victim's wallet, which contained a New York driver's license in the name of Alex Rosen. The deceased was subsequently identified as Isai Alex or "Sasha" Rozenblit, (Alex). According to Guglielmo, from the condition of the deceased's clothing and from the position of the deceased's arms, it appeared the body had been dragged or pulled to the sidewalk. Guglielmo testified that three spent .380 shell casings, and one spent .380 caliber bullet were found on the ground near the body. There were no signs that a struggle had taken place in the immediate vicinity.
The medical examiner, Dr. Mary Ann Clayton, pronounced the victim dead at 4:36 a.m. At trial, she also explained that the position of the body suggested that someone had dragged or pulled the body to where it lay and that the evidence was consistent with someone who had been shot while sitting upright. Clayton performed an autopsy which revealed five entry wounds on the left side of the victim's body and two exit wounds. Two of the three wounds to the side of the face disclosed evidence of stippling, caused by fine flicks of gunpowder deposited on the skin when shots are fired from close range, six to twelve inches away. Partial bullets and fragments were recovered on a wedge of bone at the base of the skull and at the back of the neck. There was no evidence of any defensive wounds.
In an attempt to reconstruct Alex's activities, the police interviewed his mother and the friends and business associates who had assisted Alex the preceding evening in picking up used cars that he had purchased in New Jersey. Among those interviewed were Vitaly Fargesen, Igor Katsman, and defendant. Fargesen and Alex were business associates. They were used car dealers and both had an interest in the Rallye Used Car Lot in Avenel. On the evening of October 1, 2001, Fargesen and Alex had arranged to pick up several cars from the Adessa Auction in Mandel and bring them to the Rallye car lot in Avenel. Fargesen drove from his home in Brooklyn to the car lot with Katsman. When they arrived at the car lot, Alex and defendant were already there. The four men then went in a Mercedes truck to the car auction where two Mercedes vehicles were purchased. According to Fargesen, he and Alex drove the two purchased vehicles back to the Avenel lot and defendant drove the Mercedes truck back to the lot.
Upon completion of their business, Fargesen testified he and Katsman drove back to Brooklyn in his black Corvette. They went over the Goethals Bridge into Staten Island on the way home. Fargesen recalled that Alex left the car lot with defendant in a 1998 green Lincoln Navigator. They did not travel in tandem.
On October 3, 2001, Detective Steven Kearney of the Bergen County Prosecutor's Office went to defendant's apartment and asked for permission to question him at the prosecutor's office. Defendant got dressed and accompanied the detectives in their vehicle--as he did not own a car. After Kearney read the Miranda*fn2 rights to defendant, the interview took place in an "interview room" with no weapons present. Kearney offered defendant food and drink, and got him a cigarette.
Kearney testified that defendant was not then a target of investigation and was not in custody, but that the investigation suggested defendant probably was the last person to see Alex alive. Kearney also testified, however, that the police wanted to determine if defendant was in possession of certain items which were missing from the victim's body, including his cell phone and a Rolex watch. The interview began at 11:47 p.m. and ended at about 4:30 a.m., which Kearney said was the average length of an interview in a homicide case. Defendant read and signed a search consent form, and he agreed to meet with Kearney and Detective Gregory Kohles the next day. He gave them his cell phone number so they could call him, and after the interview, Kearney and Kohles drove defendant to the apartment of his girlfriend, Vera Bessanova, where, according to Kearney, defendant offered to cooperate in any way he could.
On October 4, 2001, defendant went on his own to a prearranged meeting place where he entered the back seat of the detectives' car. They took him home so he could change his clothes and then he returned to their car. After being read the Miranda warnings in the car, defendant rode with the detectives for several hours, showing them the route he alleged he took with Alex on the night of the murder. Then, he agreed to return with them to the prosecutor's office to give a statement. At approximately 3:30 p.m., defendant gave a thirty-five-page statement in the presence of a stenographer. After the statement, Kearney and Kohles drove defendant to the New York ferry in Weehawken.
On October 5, 2001, the New York Fire Department responded to an alarm for an automobile fire at 74th Street in Brooklyn. New York City Fire Marshall Joseph Mazzarella determined that the vehicle was a Lincoln Navigator and that the fire was intentionally set. Eventually, Mazzarella learned that the Fort Lee Police Department was looking for a Navigator in connection with a homicide investigation. Several days later, he went to the scene of the fire to brief Detective Dennis Suarez of the Bergen County Prosecutor's Office and others. The vehicle--which had been "pretty much totaled"--was taken to the Bergen County Sheriff's Department for a more in-depth crime scene investigation. Among the items of interest found in the vehicle were a bottle of flammable Isopropyl rubbing alcohol, and a single .380 shell casing under the right rear passenger's seat.
At about 10:44 p.m. on October 16, after he parked his 2001 silver BMW in front of a neighbor's house in Brooklyn, Jack Harari was approached by a male dressed in black sweat pants, a black-hooded sweatshirt, a dark New York Police Department (NYPD) baseball cap, and a black ski mask. In a Brooklyn accent, that unknown male demanded the car keys. He kept his hands under his sweatshirt and pointed something at Harari, who turned over the keys to his mother's car instead. As Harari walked toward his house, the unknown male approached him again, pointed to the BMW, and said "Give me the keys to that car." Harari complied and the carjacker got into the car and left.
According to Bessonova, on the morning of October 17, defendant told her that he had borrowed a car from a friend and would drive her to work. When she got into the silver BMW, Bessonova saw an NYPD baseball cap, which defendant said he had bought, on the back seat.
William Rocchio testified that in that same timeframe, mid-October, defendant drove the BMW to Rocchio's home in Brooklyn. Rocchio got into the front passenger seat and they talked. Defendant asked Rocchio to take his gun because he was driving to New Jersey and did not want to take a chance of getting stopped. Rocchio took the gun after making sure it was not loaded and wrapped it in a washcloth. Shortly after midnight, defendant returned to Brooklyn for the gun.
On October 20, 2001, at approximately 12:44 a.m., Officer Michael Giampietro of the Cliffside Park Police Department observed a 2001 silver BMW with four-way flashers attempt to go the wrong way on a one-way street. When the officer began to follow, the driver led him on a high-speed chase until the driver lost control of the BMW and crashed into a house. Giampietro observed a male climb out of the passenger side window and run down the block. Giampietro ran after and tackled the man, who turned out to be defendant. Giampietro read defendant his Miranda rights. Then he asked if there was anyone else in the vehicle; defendant shook his head no. The officer accompanied defendant to the hospital.
A taxicab driver, Pasquale De Rito, who also was an off-duty special police officer, stopped at the scene after witnessing the accident. He saw only one man get out of the car and stand by a tree for a second before running from the police. In addition, De Rito walked over to the car, looked inside, and saw no one. Linda Santangelo, a passenger in the taxicab, also saw the crash, noticed someone climb out of the front passenger's side window. She similarly testified that no one else left the vehicle.
Jeremy Fondi was the tow truck driver who received the call to remove the vehicle from the accident site. As he was taking the BMW on his flatbed truck to the impound lot, another car sideswiped him, prompting Fondi to call the Fairview Police Department, which sent Officer Dennis Englese to take an accident report. Englese gave Fondi permission to unload the BMW and put it inside the fenced area. Following company policy, Fondi went inside the vehicle to secure it. When he realized that he could not roll up the windows, Fondi went to exit it, at which time he felt something inside the driver's side door pocket.
Examining further, Fondi found a handgun in a black holster. He lifted it up "a little bit" to make sure it was what he thought. He then called the Cliffside Park Police Department and also told Englese, who asked to see it. After putting on gloves, Englese removed the gun, dropped the magazine, unloaded a bullet from the chamber, and kept it safe until he released it to Officer Joseph Davis, who turned over the gun, a Walther PPK, along with a magazine, bullets, holster and temporary Connecticut license sticker to Detective Sergeant Albert Badrow of the Cliffside Park Police Department. There was no serial number on the weapon. Two days later, Badrow released the weapon and the other items to Detective Kearney.
Defendant was arrested for possession of the weapon and possession of the stolen BMW. Then, he was released on bail.
Kearney took the handgun, four discharged bullets, and four discharged shells to the Bergen County Sheriff's Department's Bureau of Criminal Investigation (BCI) where Lieutenant Charles Mason conducted ballistics tests. Upon completion of those tests, Mason prepared a report stating that the four bullets and the four shells recovered in connection with the shooting of Alex were discharged from the .380 caliber gun recovered in the BMW. He confirmed the gun was operable and that its serial number was "ground off or sanded off."
On October 29, 2001, Mason advised Detectives Kearney and Kohles that the gun found inside the stolen BMW was the same weapon used to shoot Alex, and that all of the discharged projectiles and shell casings came from that weapon. Those projectiles included the two bullets and three shell casings found at the scene, the projectile found in Alex's head, and the casing found inside the Navigator. Other evidence implicating defendant consisted of an E-Z Pass record from October 2, 2001, showing that Fargesen and Katsman had returned to Brooklyn by way of the Goethals Bridge and not the Turnpike, as claimed by defendant, and cell phone records indicating that someone had used Alex's cell phone after the homicide took place. The Fort Lee Police Department issued arrest warrants for defendant, which a judge signed.
At 2:00 a.m. on October 29, a Cliffside Park police officer stopped defendant for a traffic violation, found him in possession of a knife and a bag of drugs, and arrested him. Immediately after defendant was released in connection with those charges, two detectives from New York took him to the Brooklyn District Attorney's Office for questioning. Later that evening, Kearney, Kohles, and Lieutenant Callanan drove to New York and arrested defendant for Alex's murder.
Kearney read defendant his Miranda rights. Defendant initialed the questions on the form and signed the waiver. Thereafter, Kearney asked defendant if he ever owned a .380 handgun. Defendant said he had one but it was either lost or stolen. Kearney then asked if defendant owned the gun found in the stolen BMW. Defendant said "Yeah, that was mine but I loaned it to someone and had just gotten it back." He would not say to whom he had loaned the gun. When asked to consent to a buccal sample for DNA purposes, defendant became angry and asked for a lawyer. All questioning ceased.
At trial, defendant testified on his own behalf. He claimed that Alex drove him from Rallye to a rest area, and then defendant drove them to a construction lot in Fort Lee where Rocchio was waiting to speak with Alex about money Alex owed in connection with their business dealings in an escort service. Defendant testified further that Rocchio and another man got into Alex's car, and that Rocchio argued with Alex and shot him. Defendant stated he understood that Rocchio's uncle, Rocco Rocchio, was involved with organized crime, and defendant was told by people he called after the shooting to mind his own business.
Defendant also testified that Rocchio had given him the keys to the new BMW on October 16, 2001. Rocchio told him to use it with the understanding that one day Rocchio would ask for it back. While defendant acknowledged that he owned an NYPD baseball cap, he did not remember whether he had left it in the BMW.
Defendant admitted that his trial testimony differed from some of his earlier statements to police. For example, he had told Kohles that Fargesen followed Alex back from Rallye to defendant's apartment by way of the New Jersey Turnpike. At trial, he said that was not true. Defendant also initially told the detectives that after Alex drove him home, he gave AleX directions to the George Washington Bridge and watched Alex drive away. He admitted that was not true. Moreover, defendant acknowledged that he was lying when he told police that he did not know how Alex died and that he did not own a gun.
Defendant disputed the voluntariness of his statements. He testified that in the early morning hours of October 3, 2001, "eight or nine cops" took him out of his house in handcuffs and put him into the back of a squad car, which he called an "arrest." He was given his Miranda rights, but claimed he received "hostile treatment" from the police during the questioning. Defendant acknowledged, however, that when he met with detectives on October 4, he was not handcuffed.
Rocchio also testified at the trial. He admitted that he did not tell everything he knew about the matter to the police in his initial statement on November 3, 2001. For example, Rocchio did not initially tell police that defendant mentioned a Rolex watch in a note which defendant left in his doorjamb. He withheld the information until his second statement in December 2004, because he did not want to get defendant in a "worse predicament."
At the conclusion of all the proofs, the jury found defendant guilty of the charges presented, and the court sentenced defendant as previously detailed. This appeal ensued.
We now address in turn the arguments raised by defendant in his appellate brief.
Defendant contends the State violated his right against self-incrimination by improperly eliciting testimony that he had invoked the right to counsel during his post-arrest interview on October 29, 2001. Defendant argues that his conviction must be reversed because the jury could infer consciousness of guilt from his request for an attorney. Specifically, defendant objects to the following testimony by Detective Kohles:
[PROSECUTOR]: What happened next?
[KOHLES]: We asked him if he would be willing to provide us with a buccal sample for DNA purposes.
[PROSECUTOR]: And what happened then?
[KOHLES]: He refused. And at this time he requested that he wanted a lawyer.
[PROSECUTOR]: Did he have any other verbal response during this period of time?
[KOHLES]: Yes. As I stated he was quite upset and he was screaming. In fact he was screaming so loud that "You guys f---ed me. I thought you believed in me." And he shouted this out about us f---ing him and wanting a lawyer about a dozen times very loud.
[PROSECUTOR]: Did you have any further interaction with him at that point?
[KOHLES]: No. Once Mr. Tirado requested a lawyer all questioning ceased.
Defendant objects to similar testimony by Kearney:
[KEARNEY]: He was screaming very loudly, "You guys are f---ing me." He then repeated over and over again looking up at the ceiling, "You guys are f---ing me," and every time he shouted it he got louder and louder and louder. He just was completely out of control at this point. At that time we ceased speaking to him.
[PROSECUTOR]: Had he asked for an attorney at that point?
The State maintains, and we agree, that no violation occurred because the testimony demonstrates why questioning was "cut off." In addition, the trial court issued a curative instruction to the jury which reduced or eliminated any prejudice to defendant.
Before Kohles testified, the assistant prosecutor advised the court of the State's intention to ask about defendant's invocation of his right to counsel. He argued that the jury had the right to know why the interviewer only questioned defendant about the gun, and not about other newly-obtained evidence, including E-Z Pass information, cellular phone records, and the destruction of the Lincoln Navigator. The court allowed the State to elicit the testimony, but ruled it would provide a cautionary instruction that the jury could not infer guilt from defendant's ...