February 5, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER TIRADO, A/K/A CHRISTOPHER R. TIRADO, CHRIS TIRADO, CHRISTOPHER RAMOS, ANTHONY DIAZ, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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?
[KEARNEY]: Yes, he did.
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 refusal to answer any further questions. After the prosecutor elicited the challenged testimony from Kohles, the court instructed the jury as follows:
You heard the officer say that Mr. Tirado at that point in time requested the service of an attorney.
People decline to speak to police for many reasons. They have a right to an attorney. They have a right to counsel. They have a right to remain silent and that right may not in any way be used to infer guilt in this case.
I just want to caution the jury on that. You have that right to remain silent.
That should not infer [sic] guilt.
To avoid prejudice or unfair inference against either party, "trial courts should endeavor to excise any reference to a criminal defendant's invocation of his right to counsel." State v. Feaster, 156 N.J. 1, 75 (1998), cert. denied sub. nom. Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). In State v. Marshall, 123 N.J. 1, 124 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306, 122 L.Ed. 2d 694 (1993), however, the Court rejected the Fifth Circuit's rule that such a reference is harmful per se and, instead, adopted a harmless-error standard. Id. at 124-25.
In cases where proffered testimony relates "substantial evidence regarding a defendant's statements about the underlying crime" and a jury would likely question why testimony about subsequent events was not offered, a trial court has discretion to permit testimony explaining why the interview ended. Feaster, supra, 156 N.J. at 75-76. However, a curative instruction must accompany such testimony to guard against any impermissible inferences. Id. at 76.
The decision on whether inadmissible evidence may be cured by a cautionary or limiting instruction or requires the more severe response of a mistrial, "is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984); State v. Denmon, 347 N.J. Super. 457, 464 (App. Div.), certif. denied, 174 N.J. 41 (2002). "Likewise, when weighing the effectiveness of curative instructions, a reviewing court should give equal deference to the determination of the trial court." Winter, supra, 96 N.J. at 647.
The adequacy of a curative instruction focuses on the capacity of the offending evidence to lead to a verdict which could not otherwise be justly reached. Ibid.; State v. Scherzer, 301 N.J. Super. 363, 441 (App. Div.), certif. denied, 151 N.J. 466 (1997). Even in the context of a constitutional error, a court will not deem inadequate a curative instruction unless there is a real possibility that the error led the jury to a result it otherwise might not have reached. Winter, supra, 96 N.J. at 647; Scherzer, supra, 301 N.J. Super. at 441. Defendant claims that the court committed reversible error because a jury could draw an unfavorable inference from his request for an attorney and that the error was compounded by the fact that the State elicited the improper testimony during its case in chief. In Feaster, supra, 156 N.J. at 74, the testifying investigator said that he ended a post-arrest interview because the defendant had invoked his right to counsel. The Court found that the purpose of the investigator's testimony was to relate the defendant's statements concerning his employment, not to convey information relevant to the defendant's involvement in the murder. Id. at 76. The Feaster Court determined that the testimony did not jeopardize the defendant's right to a fair trial and, therefore, the trial court's actions did not amount to reversible error. Id. at 77.
Likewise, we are satisfied the trial court did not improperly exercise its discretion by permitting Kohles and Kearney to testify that defendant invoked his right to counsel. We note further that the prosecutor never commented in his summation on the invocation and did not invite the jury to draw a negative inference from such a reference. Cf. State v. Tilghman, 345 N.J. Super. 571, 577 (App. Div. 2001) (holding prosecutor invited the jury to infer guilt by suggesting in summation that the defendant requested an attorney when he perceived that his "alibi didn't work"), certif. granted and remanded for resentencing, 188 N.J. 269 (2006).
The court in this case gave a prompt and emphatic curative instruction after Kohles' testimony on the matter. Defendant's statements related to the underlying crime and, therefore, the court properly found that the jury was entitled to an explanation of why the interview ended in order to avoid any speculation. Significantly, the jury knew that the State had compiled additional evidence between the initial interviews and defendant's post-arrest interrogation, but only heard Kohles and Kearney testify about defendant's responses to questions about the gun. Kearney testified immediately after Kohles on the same day when the instruction was given.
Defendant relies upon State v. Muhammad, 182 N.J. 551 (2005), to argue that the prosecutor crossed the "line of demarcation" and violated his constitutional right to remain silent. That case, however, did not involve a defendant's invocation of his right to counsel. It is also factually distinguishable on other grounds. For example, the prosecutor in Muhammad repeatedly elicited testimony about the defendant's silence at or near the time of his arrest and during the period he was in police custody, and then referred to the defendant's silence during the opening statements and summations. Id. at 572-73.
Defendant's reliance upon State v. Elkwisni, 384 N.J. Super. 351, 370-77 (App. Div.), certif. denied, 187 N.J. 492 (2006), aff'd, 190 N.J. 169 (2007), is similarly misplaced. That case involved testimony of post-arrest silence elicited during the defendant's cross-examination, and the court had failed to provide the jury with a cautionary instruction.
Defendant contends that the trial court erred by failing to grant his motions for mistrial when Detectives Kohles, Kearney and Suarez were permitted to testify as to their opinions on the truthfulness of statements by defendant, Fargesen and Bessonova. He argues that the improper testimony "tipped the credibility scale" against him and warrants reversal of his murder conviction. The State responds that the detectives testified only about contradictions in the facts provided by defendant, Fargesen and Bessonova, and the evidence uncovered during the police investigations, and not about which versions they believed were more credible.
Specifically, defendant objects to the following exchange between the prosecutor and Kohles:
[PROSECUTOR]: Now, did you have any other information at this time that was either [sic] contradicting anything that [defendant] was telling you?
[KOHLES]: Well, basically based upon the statement and the information that Mr. Tirado was providing us, either Mr. Fargesen who had been spoken to earlier in the day was lying about going to Brooklyn and not being in Fort Lee or Cliffside behind Mr. Rozenblit or [defendant], there was no car behind [defendant] so either [defendant] was telling the truth and Mr. Fargesen wasn't or [defendant] was telling the truth, one or the other. It basically boiled down to either [defendant] being truthful or Mr. Fargesen was being truthful.
It was left for the jury to determine who was telling the truth. Moreover, there was no objection to this testimony at trial.
Defendant also complains about the following exchange with Kearney:
[PROSECUTOR]: Did you ask him [defendant] anything about whether he possessed or ever possessed a .380 handgun?
[KEARNEY]: Yes. I asked him whether or not he had ever possessed or did possess a .380 handgun.
[PROSECUTOR]: Did he answer you?
[KEARNEY]: Yes, he did. In quotes referring to the report, his answer was, "Yeah, I had one but I don't know where it is now. I think I gave it to someone or lost it or whatever."
. . . . [KEARNEY]: Well, the next step was asking whether or not the weapon that he was arrested for in Cliffside Park, whether or not that was his. I asked him if that was his weapon.
[PROSECUTOR]: Then what did he reply, if anything, at that point?
[KEARNEY]: His exact quote was, "Yeah, that was mine but I loaned it to someone and had just gotten it back."
[PROSECUTOR]: Now, was that different from his initial answer that he had given you just moments before?
[PROSECUTOR]: Was that different from any answer that he had given you on October 3rd or 4th of 2001?
Defense counsel objected to the form of the last question, claiming the prosecutor was asking the witness to express an opinion on whether defendant was telling the truth. The court sustained the objection. Counsel then moved for a mistrial, arguing that the "[t]he damage is done, once the question is asked." The court denied the request for mistrial and instructed the jury to disregard the question.
Finally, defendant cites the following testimony of Suarez:
[PROSECUTOR]: And can you tell us what preceded that particular statement?
[SUAREZ]: There had been a statement--there had been an interview of Vera Bessanovo [sic] earlier in the investigation. . . .
[T]here was a second interview of Vera Bessanovo [sic] done by Detective Sergeant Jay Haviland that evening, actually prior to my interview. And pretty much both of the interviews Vera Bessanova [sic] had provided information that we learned through the investigation was not to be true.
Defense counsel objected, and the court sustained the objection. The court then instructed the jury to disregard the last comment, stating "[o]nce again the jurors are the fact finders." Defense counsel renewed his application for a mistrial, arguing the court's curative instruction did not solve the problem once the jury heard the comments. The court denied the request, stating: "I don't think it has reached that stage where I would declare a mistrial and we'd start this all over again. That's the ruling. But I will please ask the Prosecutor to remind the witness that the jury is the fact finder."
On both occasions when defense counsel objected, the court sustained the objections and immediately issued curative instructions. In the case of Suarez, the court also directed the prosecutor to remind the witness that the jury was the fact finder. It is presumed that the jury took heed of the court's instructions. State v. Timmendequas, 161 N.J. 515, 578 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001); Feaster, supra, 156 N.J. at 65.
As to Kohles' testimony, about which defendant now complains, we apply the plain error standard to determine whether its admission was "of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 333-38 (1971). The question is whether the error may have "led the jury to a result it otherwise might not have reached." Id. at 336. We think not.
We recognize that the determination of guilt and the assessment of witness credibility are issues reserved exclusively for the jury. State v. Vandeweaghe, 177 N.J. 229, 239 (2003); State v. Frisby, 174 N.J. 583, 593-95 (2002), State v. Odom, 116 N.J. 65, 77 (1989). "There is no provision in our legal system for a 'truth-teller' who is authorized to advise the jury on the basis of ex parte investigations what the facts are and that the defendant's story is a lie." State v. Pasterick, 285 N.J. Super. 607, 620 (App. Div. 1995). The Supreme Court has observed:
We go to extraordinary lengths in ordinary criminal cases to preserve the integrity and neutrality of jury deliberations, to avoid inadvertently encouraging a jury prematurely to think of a defendant as guilty, to assure the complete opportunity of the jury alone to determine guilt, to prevent the court or the State from expressing an opinion of defendant's guilt, and to require the jury to determine guilt under proper charges no matter how obvious guilt may be.
[State v. Hightower, 120 N.J. 378, 427-28 (1990) (citations omitted).]
Defendant relies upon Frisby to argue that the admission of the detectives' testimony was harmful error. In Frisby, the defendant challenged the testimony of police officers who recounted out-of-court statements of non-testifying witnesses in contravention of the hearsay rules. 174 N.J. at 595. The officers told the jury that the statements "substantiated" the testimony of another suspect when, in fact, they had no bearing on the pivotal issue in the case. Ibid. Additionally, one officer testified that a prosecution witness was "more credible" than the defendant, which was the ultimate question for the jury. Ibid. Finding that the testimony constituted plain error, the Court in Frisby stated that "[t]he effect of the police testimony essentially vouching for [the prosecution witness] cannot be overstated." Ibid. The Court noted that a jury might be inclined to accord special respect to a police officer whose testimony could create "improper bolstering." Ibid. (quoting Neno v. Clinton, 167 N.J. 573, 586-87 (2001)).
Unlike the police officers in Frisby, Kohles did not vouch for the truthfulness of either witness. When asked if he had any information to contradict defendant's testimony that Fargesen followed him to Cliffside Park on the night of the murder, Kohles replied that Fargesen said he drove directly to Brooklyn and, therefore, one of them was not telling the truth. Kohles did not offer his opinion on whose version of events was more credible; nor did his testimony improperly bolster any witness. Under such circumstances, Kohles' testimony was neither improper nor unduly prejudicial.
Similarly, the testimony by Kearney and Suarez did not warrant a mistrial. In each instance, the court sustained the defense counsel's timely objections and immediately instructed the jury to disregard the testimony. See State v. R.B., 183 N.J. 308, 329 (2005) (holding court promptly and fully cured by its immediate instruction any concern that prosecutor's comment bolstered anyone's credibility). Both times, the objectionable line of testimony ceased. Cf. Pasterick, supra, 285 N.J. Super. at 617 (holding expert's testimony inadmissible and grossly prejudicial where expert continued to testify, without objection, regarding defendant's credibility even after court sua sponte instructed jury to disregard testimony as substantive evidence of defendant's guilt or innocence).
Here, we are convinced that the testimony did not usurp the jury's exclusive role in assessing witness credibility. Vandeweaghe, supra, 177 N.J. at 239. We affirm the court's decision denying defendant's motions for mistrial concerning the testimony by Kearney and Suarez, and finding the admission of Kohles' testimony did not deprive defendant of the right to a fair trial.
Defendant next contends that the court abused its discretion by precluding him from admitting evidence of third-party guilt. He sought to question Detective Haviland about information provided by a confidential informant that Alex "was looking to" borrow a large sum of money a few months before his death and that Alex was having difficulty repaying the loan. Defendant argues the court erred by denying any examination on the issue or, alternatively, by refusing to order the detective to reveal the informant's name so he could be interviewed. The State, however, points out that the confidential informant provided only basic information about the victim, and was unable to provide anything other than a vague and unsupported claim that someone else might have committed the crime.
At a hearing held outside the presence of the jury, Haviland testified that he met with a confidential informant of the state police along with two state troopers and two police officers from the Fort Lee Police Department. The informant, known as "Igor," was assisting the state police in another investigation, but claimed to know Alex. At the meeting, the informant told Haviland and the other officers where Alex lived and that his girlfriend, Marina, last saw Alex when he left his apartment with defendant.
In subsequent telephone calls with the state police, Haviland learned the informant told the officers that, a few months before his murder, Alex had asked him where he could borrow $130,000. The informant claimed Alex borrowed the money from someone and was having trouble repaying it. He suggested to Alex that he ask for more time. Alex, however, was not worried about the repayment, and never indicated that there were any threats against him or that he had any such concerns. Haviland prepared a report containing all the reliable information he received from the informant. However, he was unable to verify whether or not Alex did, in fact, borrow any money.
The court found this information to be "[c]onjecture, speculation, guessing," and denied the request to admit the informant's statements. The court concluded the information did not constitute a third-party event, stating:
The fact that the CI [confidential informant] says at one point in time he was looking to borrow money, I don't think that is enough in itself, is a hostile event, looking at the total circumstances that would be a reasonable thread of inducing reasonable men to regard the event as bearing upon the murder itself.
The court subsequently denied defense counsel's request for the informant's identity and a motion to stay the trial.
In general, a criminal defendant is entitled to defend a charge by showing that another person may have committed the crime. State v. Fortin, 178 N.J. 540, 590 (2004); State v. Koedatich, 112 N.J. 225, 297 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L.Ed. 2d 803 (1989); State v. Millett, 272 N.J. Super. 68, 98 (App. Div. 1994). It is insufficient, however, for the proffered evidence to simply advance a "possible ground of suspicion against another person." Koedatich, supra, 112 N.J. at 305 (quoting State v. Denny, 357 N.W.2d 12, 17 (WiS.Ct. App. 1984)). Instead, the Court instructed that it is sufficient if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case. . . . We think it is not enough to prove some hostile event and leave its connection with the case to mere conjecture. Somewhere in the total circumstances there must be some thread capable of inducing reasonable men to regard the event as bearing upon the State's case. [Id. at 298 (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S.Ct. 873, 4 L.Ed. 2d 873 (1960)).]
To introduce evidence of third-party guilt, therefore, a defendant does not have to show that the evidence supports the probability that another person committed the crime, but the evidence must be "capable of raising a reasonable doubt of defendant's guilt." Fortin, supra, 178 N.J. at 591.
The decision to admit or exclude evidence of third-party guilt is "particularly fact-sensitive" and rests within the trial court's discretion. State v. Loftin, 146 N.J. 295, 345 (1996); Koedatich, supra, 112 N.J. at 300. To admit the evidence, there must be some link between the third-party and the victim or the crime. Koedatich, supra, 112 N.J. at 300-03 (holding inadmissible the proffered testimony regarding obscene phone calls made by part-time football coach at victim's high school because it raised only a possible ground of suspicion, not a sufficient link between the coach and victim); Millett, supra, 272 N.J. Super. at 99-100 (finding evidence of four males sitting in car across the street from the gas station near the time of the murder satisfied the Koedatich relevance standard by raising a reasonable doubt on the issue of the defendant's guilt).
A defendant also may introduce evidence of third-party guilt if it tends to undermine critical evidence of the defendant's guilt, rather than linking the third-party through motive or criminal conduct. State v. Jorgensen, 241 N.J. Super. 345, 351 (App. Div.), certif. denied, 122 N.J. 386 (1990). In Jorgensen, we noted:
There is no requirement that the proffered evidence must prove or even raise a strong probability that someone other than the defendant committed the offense.
Rather, the evidence need only tend to create a reasonable doubt that the defendant committed the offense. In this regard, our focus is on the effect the evidence has upon the defendant's culpability, and not the third party's culpability. [Id. at 351 (quoting Johnson v. United States, 552 A.2d 513, 517 (D.C. 1989)).]
Unlike Jorgensen, defendant's proffered testimony was inadmissible hearsay and without substantial probative value. The court correctly found that there was no causal connection between the informant and the murder. While the proffered testimony raised the possibility that Alex had borrowed money shortly before his death, there was no evidence pertaining to a particular individual who might have committed the crime. Nor did the proffered testimony create a reasonable doubt that defendant committed the crime. Instead, it merely suggested that another person might have a motive to commit the crime without any other proof connecting a third-party to the offense charged. Koedatich, supra, 112 N.J. at 305. By contrast, the trial court allowed defendant to testify directly that it was Rocchio who shot Alex. The jury obviously rejected that testimony.
We also agree with the trial court's exercise of discretion to deny defendant's request for the informant's identity. Disclosure of a confidential informant's identity is governed by the so-called "informant's privilege" contained in N.J.R.E. 516, which gives a witness "a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of the law. . . ." Courts generally will not require the disclosure of an informant's identity. State v. Foreshaw, 245 N.J. Super. 166, 181 (App. Div.), certif. denied, 126 N.J. 327 (1991). While courts "must remain sensitive to the legitimate needs of defendants and to fundamental principles of fairness, they should not honor frivolous demands for information on unsubstantiated allegations of need." State v. Milligan, 71 N.J. 373, 393 (1976).
A consideration of the relevant factors here does not warrant disclosure of the informant's identity. Defendant's claim that he needed the disclosure to investigate the possibility that someone else committed the murder was mere speculation. The informant provided only basic information about the defendant and unsubstantiated information about his financial situation. The informant did not participate in the crime and, in fact, was not assisting the police in its investigation. He, therefore, was not an essential witness in the case.
Defendant contends that the court erred in denying his motion to sever counts five (eluding), six (receiving stolen property) and seven (resisting arrest) from the remaining counts in the indictment. He argues severance was appropriate because:
(1) the car chase took place eighteen days after Alex's murder;
(2) the counts were separate and distinct from the other crimes charged; and (3) the inclusion of the counts was unduly prejudicial and improperly biased the jury's "community conscience" against him. We disagree.
The trial court denied severance, concluding that evidence of the underlying conduct--the carjacking in Brooklyn--was admissible under N.J.R.E. 404(b) as part of a scheme or plan of action relevant to the material issue in dispute and that any prejudice to defendant did not overwhelm its "extreme probative value." We note that the gun and shell found in the stolen vehicle were linked ballistically to the homicide.
The decision to grant a motion to sever is within the trial court's sound discretion and will only be reversed if there was an abuse of discretion. State v. Morton, 155 N.J. 383, 451-52 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); State v. Chenique-Puey, 145 N.J. 334, 341 (1996); State v. Urcinoli, 321 N.J. Super. 519, 541 (App. Div.), certif. denied, 162 N.J. 132 (1999). "[W]here the evidence establishes that multiple offenses are linked as part of the same transaction or series of transactions, a court should grant a motion for severance only when defendant has satisfied the court that prejudice would result." State v. Moore, 113 N.J. 239, 273 (1988). "[T]he mere claim that prejudice will attach is not sufficient to support a motion for severance." Id. at 274, (quoting State v. Kent, 173 N.J. Super. 215, 220 (App. Div. 1980)).
Rule 3:7-6 governs the joinder of offenses:
Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be provided by R. 3:15-2.
According to Rule 3:15-2(b):
If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.
Related offenses may be tried together as long as a defendant's right to a fair trial is not prejudiced. Urcinoli, supra, 321 N.J. Super. at 542.
In determining whether joinder is prejudicial, the critical inquiry is "'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" Chenique-Puey, supra, 145 N.J. at 341 (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)). N.J.R.E. 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
Where evidence would be admissible at both trials, severance may be denied as the defendant would not sustain any more prejudice in a joint trial than in separate trials. Chenique-Puey, supra, 145 N.J. at 341; Urcinoli, supra, 321 N.J. Super. at 542-43. "Evidence of conduct including other criminal acts of an accused, subsequent to the offense charged is admissible if it is probative of guilt." State v. Johnson, 287 N.J. Super. 247, 262 (App. Div.), certif. denied, 144 N.J. 587 (1996).
Here, the joinder of the offenses was appropriate because the gun found in the BMW stolen in Brooklyn on October 16, 2001, and involved in the car chase on October 20, 2001, also matched the weapon used to murder Alex on October 2, 2001. The later charges were interrelated and probative on the issue of identity. As the court correctly found, any prejudice to defendant did not overwhelm the extreme probative value of the evidence relating to the charged offenses. Moreover, defendant did not suffer any more prejudice in the joint trial than he would have in separate trials.
Joinder also was warranted because "[t]he interests of economy and efficiency may require that similar or related offenses be joined for a single trial, so long as the defendant's right to a fair trial remains unprejudiced." State v. Coruzzi, 189 N.J. Super. 273, 298 (App. Div.), certif. denied, 94 N.J. 531 (1983); see also Urcinoli, supra, 321 N.J. Super. at 543 (in the absence of undue prejudice and with recognition of judicial economy, there was no abuse of discretion in denying the motion to sever). Because the charges against defendant were intertwined, the State would have had to present substantial portions of its case twice if the counts were severed, thereby consuming an undue amount of judicial and prosecutorial time. Under these circumstances, and in the absence of prejudice, the denial of severance was proper.
Defendant argues that the trial court improperly admitted, under N.J.R.E. 404(b), evidence of the theft of the silver BMW in Brooklyn on October 16, 2001. Specifically, he argues that the court abused its discretion by allowing testimony about the theft because the State failed to satisfy the standard articulated in State v. Cofield, 127 N.J. 328, 338 (1992). To determine admissibility of other-crime evidence, the Court in Cofield established a four-prong test:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing;
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [127 N.J. at 338.]
The Cofield Court intended for the analysis to reduce the underlying danger that a jury may convict a defendant because he or she is "'a bad" person in general.'" Id. at 336 (quoting State v. Gibbons, 105 N.J. 67, 77 (1987)). The State contends the testimony about the theft in Brooklyn was relevant to the possession of the stolen vehicle in New Jersey and to the earlier murder. We agree with the State.
Prior to trial, the State moved to allow evidence of the car theft, arguing the theft in Brooklyn and the car chase four days later in Cliffside Park were interconnected with Alex's murder. Less than ten hours after the theft of the BMW, defendant appeared outside of his girlfriend's apartment in Cliffside Park and, according to her, was driving a car of the same description. Four days later, defendant was arrested after a high-speed car chase which ended when the stolen car crashed into the side of a house. Defendant was the only occupant seen exiting the car. The murder weapon, which defendant admits he owned, and an NYPD cap similar to that worn by the carjacker in Brooklyn were found inside the vehicle. The interrelationship between defendant's presence in the stolen vehicle and his possession of the gun that was linked by ballistic comparison to the murder of Alex is evident and compelling.
Evidence of other crimes, wrongs or acts may not be introduced into evidence to prove a defendant's criminal predisposition as a basis to establish guilt of the crime charged, State v. Williams, 190 N.J. 114, 121-22 (2007); State v. Harris, 156 N.J. 122, 171-72 (1998); State v. Nance, 148 N.J. 376, 386 (1997); but other-crimes evidence may be admitted for limited purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b).
A trial court has discretion to admit other crime evidence under N.J.R.E. 404(b). State v. Marrero, 148 N.J. 469, 483 (1997); State v. Angoy, 329 N.J. Super. 79, 88 (App. Div.), certif. denied, 165 N.J. 138 (2000). "[U]nless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted,'" "an appellate court should not substitute its own judgment for that of the trial court." State v. Brown, 170 N.J. 138, 147 (2001) (quoting Marrero, supra, 148 N.J. at 484). When other crime evidence is admitted, however, the court must instruct the jury as to its limited use. Marrero, supra, 148 N.J. at 495; Cofield, supra, 127 N.J. at 340-41.
After charging the jury on the elements of the crime of receiving stolen property, the court included a proper limiting instruction. It instructed the jury that Harari's testimony was introduced only "to prove that defendant knew that the BMW had been stolen at the time he brought it into the State of New Jersey or possessed it in the State of New Jersey." The court explained that such evidence normally was not permitted to prove that defendant committed other crimes, wrongs or acts, and further instructed the jury that it could not use the evidence "to decide that the defendant has a tendency to commit crimes or that he is a bad person." It continued, "[t]hat is, you may not decide that just because the defendant has committed other crimes, wrongs or acts, he must be guilty of the present crime."
Although defendant characterizes Harari's testimony concerning the incident as "so tenuous and illogical that it properly should have been found to be irrelevant under N.J.R.E. 401," we have no doubt that, without regard to the identity of the carjacker, the carjacking, defendant's apprehension following the crash of the stolen vehicle, and the discovery of the murder weapon are highly relevant to the identity of the murderer. "'Relevant evidence' means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. The focus of the inquiry is on "the logical connection between the proffered evidence and a fact in issue." State v. Darby, 174 N.J. 509, 519 (2002). "If the evidence offered makes the inference to be drawn more logical, then the evidence should be admitted unless otherwise excluded by a rule of law." Ibid. (quoting State v. G.V., 162 N.J. 252, 272-73 (2000)).
Defendant was not charged in this case with the theft of the BMW in Brooklyn. Harari's testimony was relevant, nevertheless, to establish the elements of at least one of the offenses with which defendant was charged - receiving or bringing into New Jersey moveable property of another. N.J.S.A. 2C:20-7. Thus, the evidence had a direct relationship to conduct on trial. G.V., supra, 162 N.J. at 273.
Assuming that the theft is other-crimes evidence, it is not materially different in kind nor remote in time from the offense charged. The court appropriately found that defendant was in possession of a silver BMW matching the description of Harari's car "close in time" to when it was stolen. Specifically, the court noted that the BMW was in Cliffside Park "somewhere in the vicinity of an hour and ten minutes, or fifteen minutes" after the theft, and was driven by defendant to his girlfriend's apartment the next morning.
Regarding the third prong of Cofield, defendant contends that the State failed to meet its burden because Harari was unable to see the face of the man who took his car and his description of the thief was undistinguished. Again, defendant's argument focuses incorrectly on the theft of the property, rather than on the receipt of the stolen property. The court, however, found the third prong of Cofield was satisfied because the BMW in which defendant took his girlfriend to work the next morning was "not an ordinary kind of car, [but] a BMW[,] silver." Notably, there was no serious dispute that the crashed car from which defendant fled on foot belonged to Harari or that items recovered from that car - a New York City baseball cap similar to the one worn by the carjacker and the gun linked to the murder - belonged to defendant.
Finally, as to the fourth prong of Cofield, defendant argues the court erred by ruling that the prejudice must "overwhelm" the probative value. A court will exclude probative evidence claimed to be unduly prejudicial only if the "probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation" of the issues. State v. Koskovich, 168 N.J. 448, 486 (2001). Evidence should not be excluded based on the mere possibility that it could be prejudicial. Ibid. The fourth prong of the Cofield test requires application of the balancing test in N.J.R.E. 403. Ibid. The trial court here did not abuse its discretion by ruling that the risk of undue prejudice to defendant did not overwhelm or "substantially outweigh" the probative value of the relevant evidence. N.J.R.E. 403.
Defendant contends that the court committed reversible error by failing to suppress his statements to the police. He argues that the statements were not made knowingly, voluntarily or intelligently because the detectives failed to advise him of his true status as a suspect in the criminal investigation. He further argues that his statements were the product of "unfair means" because the detectives pretended to be his friend. Thus, he claims that the detectives used improper solicitous conduct to deprive him of the ability to make an "unconstrained, autonomous, and knowing decision to waive his Fifth Amendment rights." We find no merit in these arguments.
Based on evidence presented at the N.J.R.E. 104 hearing, the court denied defendant's motion to suppress his statements to the police made orally on October 3, 4 and 20, and in writing on October 4 and 29. The trial court emphasized that defendant's initial statements were "not only voluntarily given but given in circumstances where [defendant] was not in a custodial setting though he was Mirandized on more than one occasion." The court remarked that it appeared that defendant was not only voluntarily cooperating with the police, but was doing so "aggressively . . . for his own motivations." The evidence supports the motion court's decision that defendant was not in custody when he made statements on October 3 and 4, 2001, and that Miranda warnings were nevertheless given. Those statements were properly determined to be admissible at trial.
There also is substantial credible evidence in the record that when defendant was in custody, he was not questioned at any time prior to his receiving Miranda warnings. He waived his rights voluntarily. Because defendant's statements were either non-custodial or voluntary and knowing, we discern no basis to dispute the court's findings or to disturb its conclusions.
Defendant contends the court erred by allowing Officer Kohles to testify regarding the flow of blood around the victim's body. In our judgment, the amount of blood observed by Kohles during his investigation at the crime scene bears upon the possible movement of the body after Alex was shot. Otherwise, the flow of blood is of marginal relevance. Consequently, defendant's arguments on this subject are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Whether that testimony is characterized as lay opinion or expert opinion, it was not of such a nature as to have been capable of producing an unjust result. R. 2:10-2.
Defendant contends, for the first time on appeal, that the trial court committed plain error by allowing Detective Kohles to testify that a judge signed defendant's arrest warrant. Defendant claims the testimony suggested to the jury that a "neutral judge" had already determined there was sufficient proof of his guilt and that there was absolutely no need to refer to the judge's involvement.
Ordinarily, objections not raised below are generally deemed waived. R. 1:7-2. Nevertheless, a reviewing court may reverse on the basis of an unchallenged error if it finds "plain error," that is, error "clearly capable of producing an unjust result . . . ." R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005). With a jury trial, the possibility of an unjust result must be sufficient to raise a reasonable doubt as to whether the error led the jury to a verdict it otherwise might not have reached. State v. Jordan, 147 N.J. 409, 422 (1997).
We find no merit to defendant's allegation of plain error on the admissibility of this evidence. State v. Marshall, 148 N.J. 89, 239-41, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997) (finding no authority in support of such a claim).
Defendant also contends, for the first time on appeal, that the court committed plain error by using the phrase "guilt or innocence" in an instruction to the jury not to consider the victim's character. Defendant argues that by improperly instructing the jury to consider his innocence, the court reduced the State's burden in proving his guilt beyond a reasonable doubt. Again, we disagree.
The challenged use of "guilt or innocence" arose when the court gave the following limiting instruction:
Earlier today you heard the testimony of Miss Rozenblit [sic] and her statement to police that she told the police that her son did not have the apartment in his name for one reason or another. It was either credit reason [sic] or the fact he had been incarcerated.
You may not consider the character of the victim with regard to the innocence or guilt of the defendant during your deliberations at the end of this case. You may only consider the statement in regard to Mrs. Rozenblit's [sic] credibility, that is whether the statement is consistent or inconsistent.
We have previously recognized that "[a] verdict of not guilty is not synonymous with innocence; innocence connotes a person free from blame. A not guilty verdict simply means the jury found that the State did not carry its burden of proof." State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003).
Thus, finding a defendant not guilty beyond a reasonable doubt is not the same as finding a defendant innocent. Ibid. Nevertheless, we reject defendant's argument that the court's singular use of the term "innocence" tended to reduce the State's burden of proof.
In White, a case that required a new trial for other reasons, the panel discussed "the use of the phrase 'guilt or innocence' throughout the charge." Id. at 411. Although we recommended that phrase should be avoided in the future, we observed that no new trial is required where there was no likelihood that the judge's misstatement affected the jury's verdict in the case. Id. at 413. See also, State v. Vasquez, 374 N.J. Super. 252, 265 (App. Div. 2005).
Here, the trial court used the phrase "guilt or innocence" only once in the above-quotes curative instruction. Given that the phrase, while improper, was made in an isolated context, it does not warrant reversal of defendant's conviction. The singular and discrete use of the phrase did not have the capacity to produce an unjust result, and does not warrant further discussion. R. 2:11-3(e)(2).
Defendant contends that the trial court improperly allowed the prosecutor to use suppressed evidence to refresh Vera Bessonova's recollection. He argues the prosecutor violated the court's ruling that an improperly-seized document, a letter written by Bessonova to defendant after his arrest, was inadmissible, and that the court abused its discretion by permitting the witness to examine it.
Investigators found the letter when they were conducting an inventory of defendant's belongings in connection with his transfer from a Brooklyn jail to the Bergen County jail. In the letter, Bessonova described what she told the police in her formal statement given on October 30, 2001. The investigators seized the letter without a warrant and made a copy of it. The court ruled that the letter itself would be suppressed, but that the State had the right to question Bessonova consistent with the following parameters:
[COURT]: I'll allow [the prosecutor] to ask her if she sent [defendant] any letters, what conversations she had with [defendant] and what the content of that conversation or the communications she had with [defendant].
[DEFENSE COUNSEL]: Judge, I don't mean to question you but I'm trying to understand are you saying then that [the prosecutor] can ask what the content, meaning the Prosecutor can ask what the contents of that letter were?
[COURT]: Yes. I will allow [the prosecutor] to ask her what she said to [defendant] by way of letter, telephone or face-to-face communication.
[DEFENSE COUNSEL]: But you are ruling that the letter is suppressed.
Bessonova testified on direct examination that several weeks after defendant's arrest, defendant asked her what she told the police. She summarized her statement in a four- or five-page typed letter with a handwritten note at the end.
The prosecutor showed the letter to Bessonova for the expressed purpose of refreshing her recollection about the content of the handwritten note. Bessonova stated it contained "everything" she told police in her October 2001 statement. When Bessonova could not recall what she wrote at the end of the letter just before mailing it, the assistant prosecutor asked her to look at the last page of the letter to refresh her recollection, and then put it aside. He then asked her to remember the "whole content" of the note. Bessonova could not remember its "every word" and expressed confusion over what he wanted from her. After the court overruled defense counsel's objection, the assistant prosecutor asked Bessonova to refer again to the last page to refresh her recollection about the note's "whole complete content." Bessonova reread it and said "If you're looking for the last sentence it says, 'I hope this will help'."
N.J.R.E. 612 allows a witness in a criminal proceeding to use a writing to refresh the witness's memory and further provides that the adverse party is entitled to its production, inspection, and use in cross-examination. The writing itself does not constitute substantive evidence of the facts therein. See Comment 5 on N.J.R.E. 612. "The admissible evidence is the recollection of the witness, and not the extrinsic paper." State v. Carter, 91 N.J. 86, 123 (1982). A witness may examine any document to refresh recollection after a proper foundation has been laid. Id. at 122. Thus, a document may be used to refresh recollection even if it was obtained as the result of an unlawful search and seizure. Id. at 122-23. A witness must, however, have prior knowledge that can be refreshed by the information. Lautek Corp. v. Image Bus. Sys. Corp., 276 N.J. Super. 531, 545 (App. Div. 1994).
A trial court may decline to exercise its discretion to allow use of a document if the writing does not refresh a witness's recollection, if the danger of undue suggestion outweighs its probative value, or if the witness's memory was not actually impaired. Carter, supra, 91 N.J. at 123; State v. Williams, 226 N.J. Super. 94, 103 (App. Div. 1988). The standard to be applied on appeal is that of plain error. Williams, supra, 226 N.J. Super. at 104.
In Carter, a factually similar case, the defendant, while incarcerated, wrote letters to two prospective alibi witnesses.
91 N.J. at 122. The trial court ruled the letters inadmissible when the State could not establish how or when it obtained them. Ibid. The trial court, however, permitted the State to use the letters to refresh the recollection of the witnesses based on its finding that the writings did, in fact, refresh their recollections and the danger of undue suggestion did not outweigh their value. Id. at 123. On appeal, we agreed, stating the test was whether the witness put before the court his or her independent recollection and knowledge. Ibid.; Cf. State v. Caraballo, 330 N.J. Super. 545, 557-58 (App. Div. 2000) (holding use of witness's out-of-court statement was inadmissible to refresh his recollection because the witness had refused to cooperate).
Unlike the defendant in Caraballo, Bessonova did not refuse to cooperate. When Bessonova read the last line of the note into the record, she did so based on her apparent confusion about what the assistant prosecutor was "looking for." We do not find the trial court abused its discretion by allowing the witness to review the letter to dispel whatever confusion she experienced as a result of the assistant prosecutor's question. Moreover, we discern no prejudice since, at worse, the note at the end of the letter may have revealed a favorable bias that was already apparent from Bessonova's known cohabitation with defendant.
A. Excessive Parole Ineligibility Terms
Defendant now complains that the court abused its discretion by not imposing the minimum period of parole ineligibility on counts one, five, six and eight. We reject these complaints. For any sentence, a court may fix a minimum term during which the defendant is not eligible for parole provided the court is "clearly convinced" that the aggravating factors "substantially outweigh" the mitigating factors. N.J.S.A. 2C:43-6(b). The term may not, however, be more than one-half of the overall term, pursuant to N.J.S.A. 2C:43-6(a).
A court should state its reasons for parole ineligibility, and describe the factors it considered and how it weighed them, State v. Bessix, 309 N.J. Super. 126, 130 (App. Div. 1998), but to the extent the court failed to state clearly its reasons, we perceive no prejudice. Where, as here, a court properly finds no mitigating factors, yet finds a number of aggravating factors, a parole ineligibility period may be sustained because it would be clear that the aggravating factors substantially predominated. State v. McBride, 211 N.J. Super. 699, 705 (App. Div. 1986).
We are satisfied, however, that the court explained its reasons for applying the aggravating factors. The court applied aggravating factor one based on the nature of the crime and how it was committed, explaining:
The case is clear that on October 2nd, 2001 based upon the evidence and the finding of this jury [defendant] shot his best friend, Mr. Rozenblit, twice in the head while they were seated in Mr. Rozenblit's 1998 Lincoln Navigator. After shooting his friend twice in the head the evidence showed and the jury found that [defendant] pushed Mr. Rozenblit out of the car, drag[ged] him a period of time, then fired three more shots into the body.
The evidence also showed that not only did he shoot Mr. Rozenblit but he took his vehicle, stole the money that he had on him at that time and a Rolex watch valued at approximately $10,000.
On aggravating factors three and six, the court found that defendant had an extensive prior criminal record and that there was a risk he would commit another offense. The court further supported its finding of risk based on defendant's testimony at trial that the crime was not committed by him but by someone else. In spite of that testimony, the jury still convicted defendant of murder. With respect to aggravating factor nine, the court found that Alex's murder was defendant's fourth or fifth felony conviction, and that there was a clear need to deter him and others from violating the law. The court also found the existence of aggravating factor thirteen, noting that defendant used the stolen Navigator during his immediate flight from the commission of the murder. N.J.S.A. 2C:44-1a(13).
Although not mentioned at the sentencing hearing, the judgment of conviction erroneously listed aggravating factor eleven (when imposition of a fine without also imposing a term of imprisonment would be perceived by the defendant as part of the cost of doing business). N.J.S.A. 2C:44-1(a)(11). A provision may be added to a judgment if it was omitted when a sentence was pronounced, provided the judge indicated at the sentencing hearing that he or she intended to include it. State v. Womack, 206 N.J. Super. 564, 571 (App. Div. 1985), certif. denied, 103 N.J. 482 (1986). That was not the case here. Moreover, aggravating factor eleven does not apply unless the judge is balancing a non-custodial term against a prison sentence. Dalziel, supra, 182 N.J. at 502 (rejecting State's argument that aggravating factor eleven applied in situations where a shorter prison term may be deemed "the cost of doing business"). Thus, factor eleven is inapplicable and the court's oral sentencing opinion controls. When an oral opinion reflects the proper sentence, it controls over the judgment of conviction. State v. Warmbrun, 277 N.J. Super. 51, 58 n.2 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Nonetheless, disregarding factor eleven does not invalidate the sentence that was imposed.
The record shows that, at the time of sentencing, defendant had prior convictions for such indictable offenses as criminal mischief, grand larceny, possession of a controlled dangerous substance, reckless endangerment, possession of stolen property, burglary, unauthorized use of a vehicle, and robbery. Defendant maintained his innocence after his conviction, however, the court identified sufficient aggravating factors that were supported by competent and credible evidence in the record. State v. O'Donnell, 117 N.J. 210, 215 (1989).
Pursuant to NERA, N.J.S.A. 2C:43-7.2, whenever a court imposes a sentence of incarceration for a "violent" crime of the first or second degree, it "shall" fix a minimum term of parole ineligibility of 85% of the sentence. N.J.S.A. 2C:43:7-2(a); see also State v. Thomas, 166 N.J. 560, 569-70 (2001) (discussing legislative intent in passing NERA, to punish the most violent first- and second-degree offenders). Thus, the court did not abuse its discretion by adding an 85% parole disqualifier on count one. Nor did the court abuse its discretion by imposing parole ineligibility periods of one-half the overall terms on counts five, six and eight.
B. Excessive Base Sentences
Defendant next contends that the court erred by imposing the maximum base sentences on count three (a first-degree crime), count five (a second-degree crime), and counts six, seven and eight (third-degree crimes). He argues the court's sentence should not have exceeded the statutorily authorized minimum terms of ten years for a first-degree crime, five years for a second-degree crime and three years for a third-degree crime. In support of this argument, defendant relies on State v. Marinez, 370 N.J. Super. 49, 59 (App. Div.), certif. denied, 182 N.J. 142 (2004), which recognizes the "real time" consequences of periods of parole ineligibility. In Marinez, however, we addressed NERA's substantial and inconsistent effect on the manner in which trial judges exercised their sentencing discretion. Id. at 58-59. We found that the sentence - which was in excess of the then presumptive term - was unduly harsh and severe. Id. at 59. In reaching that decision, however, the panel had found two mitigating factors (not one), and raised questions about the appropriateness of two of the three aggravating factors. Id. at 58-59. Those circumstances are absent here.
An appellate court must determine if there was sufficient credible evidence in the record to support a trial court's finding of the mitigating and aggravating factors, and the weighing of those factors. State v. Evers, 175 N.J. 355, 397 (2003). In this case, the evidence and testimony support the sentencing court's findings. Defendant's base sentences were fixed within the prescribed ranges. Accordingly, we conclude that the court properly exercised its discretion.
C. Constitutional Rights Under Blakely and Natale
Defendant contends that his sentences violated his constitutional rights under Blakely and Natale, and must be vacated because they exceeded the then-existing presumptive terms. Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004); State v. Natale, 184 N.J. 458 (2005).
In Natale, supra, 184 N.J. at 484, the Court held that the New Jersey Code of Criminal Justice's system of presumptive-term sentencing violated the Sixth Amendment right to a trial by jury. Because the presumptive term under the Code was the maximum sentence a defendant could receive without judicial fact-finding of aggravating factors, the Court found any sentence above the presumptive term that was based on judicial fact-finding would be unconstitutional. Ibid. While judges should continue to balance aggravating and mitigating factors, the Court made clear that they no longer were required to do so from the fixed point of a statutory presumption. Id. at 488. See State v. Thomas, 188 N.J. 137, 152 (2006) (holding there was no Sixth Amendment violation when a sentencing judge made findings of fact concerning the defendant's prior convictions, thereby requiring the imposition of a mandatory enhanced sentence); State v. Pierce, 188 N.J. 155, 169 (2006) (once a court finds that the minimum statutory eligibility requirements for an extended-term sentence are present, the maximum sentence is the top of the extended-term range).
The Court issued its opinion in Natale on August 2, 2005. Defendant was sentenced in this case on September 9, 2005. In its sentencing decision, the trial court mentioned Blakely and Natale, and referred to a State exhibit which went into detail about the two cases and what the court should do with regard to presumptive terms. Thus, the trial court was aware of these cases and their elimination of presumptive terms as a fixed point of departure for sentencing. The trial court did not impose any term that exceeded the maximum for the range.
D. Consecutive Sentences
Next, defendant argues that the court abused its discretion by requiring that the terms imposed on counts one (murder), five (eluding), six (theft by receiving stolen property), and eight (unlawful possession of a weapon) be served consecutively. Specifically, he argues that the court failed to consider all of the factors set forth in 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). He also argues that these counts should run concurrently because they were committed during "one continuous criminal act" based on the prosecutor's decision to join all counts in a single indictment.
"Under our sentencing scheme, there is no presumption in favor of concurrent sentences . . . ." Abdullah, supra, 184 N.J. at 513. A trial court, therefore, has discretion to impose consecutive sentences. Id. at 512. In exercising that discretion, the trial court is guided by the Yarbough criteria, which can be found at 100 N.J. 627, 643-44. In 1993, the Legislature amended N.J.S.A. 2C:44-5(a) to provide that "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." Abdullah, supra, 184 N.J. at 513. That amendment gave greater discretion to judges in determining the overall length of sentences. Ibid.
Where facts and circumstances leave little doubt as to the propriety of the sentences, and where there is no showing that the sentences are clearly mistaken, an appellate court may affirm. State v. Jang, 359 N.J. Super. 85, 98 (App. Div.), certif. denied, 177 N.J. 492 (2003). Consecutive sentences are especially appropriate to protect society from those who are unwilling to lead productive lives and who resort to criminal activities. State v. Tacetta, 301 N.J. Super. 227, 261 (App. Div.), certif. denied, 152 N.J. 188 (1997).
In this matter, the trial court chose to make the sentences on counts five, six and eight consecutive to the life sentence imposed on count one. It considered count five (eluding) as a separate crime and counts six (receiving stolen property) and eight (unlawful possession of a weapon) as separate crimes with separate victims. The court also found that count seven (resisting arrest) was a separate crime, but imposed a concurrent sentence.
At the conclusion of the hearing, the court reiterated the total sentence imposed, stating: "Based upon State v. Yarbough, these are all separate victims and separate crimes with separate sentences." A court may impose consecutive sentences even where a majority of Yarbough criteria support concurrent sentences. Carey, supra, 168 N.J. at 427-28 (citing State v. Perry, 124 N.J. 128, 177 (1991) (concluding trial court properly imposed consecutive sentences even though four of the five Yarbough factors favored concurrent sentences).
We perceive no basis for defendant's argument that the court should have imposed concurrent sentences because the three offenses represented "one continuous criminal act." For example, in State v. Swint, 328 N.J. Super. 236, 264 (App. Div.), certif. denied, 165 N.J. 492 (2000), we held that concurrent sentences need not be imposed even when offenses were connected by unity of specific purpose, were somewhat interdependent of one another, and were committed within a short period. We are, therefore, satisfied that the court did not abuse its discretion in imposing consecutive sentences on counts five, six and eight. The sentences are neither manifestly excessive nor unduly punitive, and do not shock the judicial conscience or represent a miscarriage of justice. Taccetta, supra, 301 N.J. Super. at 261.
Finally, the State concedes that the court erred by imposing a $100 VCCB penalty on each count. Unless the conviction involved a crime of violence or eluding which resulted in the injury or death of another, the maximum assessment at the time of sentencing was $50 per count under N.J.S.A. 2C:43-3.1(a)(1) and (2). The State, therefore, requests that the judgment of conviction be amended from a VCCB penalty of $700 to $400.
In accordance with the State's request, we remand for a correction of the VCCB penalty. In all other respects, the judgment of conviction is affirmed.