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State v. Vallejo

March 10, 2009


On certification to the Superior Court, Appellate Division.


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In 2005, Diego Vallejo and Miryam Vera, first cousins, were involved in a romantic relationship and were living together in Vallejo's parents' home. Vera's family disapproved of this relationship, which had been rocky. On May 21, 2005, Vallejo allegedly assaulted Vera, threatened her, and kept her confined to a locked room for over thirteen hours. Vera ultimately escaped, the police were called, and Vallejo was arrested and eventually indicted for first-degree kidnapping, second-degree robbery, second-degree aggravated assault, and third-degree terroristic threats.

Prior to trial, an N.J.R.E. 104 hearing was held in respect of the admissibility of a prior domestic violence incident between Vera and Vallejo. The trial judge denied the State the ability to refer to that incident.

During the short trial of this matter, prior incidents of domestic violence and the existence of the restraining order against Vallejo were referenced by various witnesses, without objection by defense counsel. The questioned evidence includes: Vera's testimony alluding to a different domestic violence incident in East Brunswick and to the fact that she and Vallejo "had incidents before;" Vera's mother, Rosario Juarez's, testimony about the 911 call in which she stated that this had happened "many times" before; investigating Officer Braconi's testimony that "[Juarez] was claiming that [defendant] had beaten [Vera] up in the past and things of that nature."; and Vera's testimony regarding the domestic violence restraining order that issued as a result of the incident in this case. As noted, defense counsel failed to object to the admission of any of this testimony.

During the charge conference, the trial judge acknowledged the need for a curative instruction concerning the cumulative testimony of Vallejo's prior bad acts. The judge gave an instruction at the end of trial telling the jury that any "blurted out" information from witnesses could not be considered and that the jury was to consider only what occurred on May 21, 2005. Defense counsel did not object to the court's instruction.

Vallejo was convicted by a jury of the kidnapping, robbery, terroristic threats charges. In addition, sitting as the trier of fact, the judge found Vallejo guilty of the disorderly person's offense of simple assault. Vallejo was sentenced to an aggregate custodial term of fifteen years, subject to the No Early Release Act.

Vallejo moved for a new trial, arguing, among other things, that the guilty verdict on the kidnapping charge was against the weight of the evidence. He based his motion on new evidence provided by Vera suggesting that she had not been truthful at trial. The premise of Vallejo's argument was that if Vera's testimony was in question, the remainder of the evidence against him would not have sustained a conviction. The trial judge conducted a hearing on the motion. Vera recanted her trial testimony and stated, under oath, that she had previously lied because she was angry with Vallejo. She claimed that he did not hit her or kidnap her during the incident, that she was still in a relationship with him, and that the bruising she sustained from the incident was exaggerated because she bruised easily. Vallejo claimed that Vera's trial testimony was not credible and that a new trial was warranted. The trial judge denied the motion, finding that Vera's recantation was not credible.

Vallejo appealed arguing, among other things, that the trial judge committed plain error by failing to adequately instruct the jury to disregard evidence of the prior incidents. The Appellate Division conceded that the curative instruction was not given immediately after each improper remark was made and that the charge did not specifically discuss the exact testimony the jury should disregard. However, the panel noted that the instruction did direct the jury to only consider evidence about the day in question. Moreover, even if the curative instruction was inadequate, the Appellate Division held that the error was not clearly capable of producing an unjust result because of the other evidence in the record of Vallejo's guilt. Vallejo also claimed that he was denied effective assistance of counsel and the Appellate Division preserved those arguments for post-conviction relief. The panel declined to address whether there was trial error in admitting the restraining-order evidence because the claim had only been presented in connection with Vallejo's challenge to his counsel's effectiveness.

The Supreme Court granted certification.

HELD: This brief trial was poisoned by the recurring admission of evidence of other crimes and wrongdoings by defendant, Diego Vallejo, and by reference to the domestic violence restraining order against him. The trial judge's curative instruction was insufficient and, as a result, Vallejo was denied a fair trial.

1. The questioned evidence serially described prior incidents of domestic violence, different from the incident on which the present trial was based. Therefore, N.J.R.E. 404(b) governs the admissibility of each remark. That rule states that 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. Other-crimes evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation and plan. Other-crimes evidence is considered highly prejudicial. This case is an example of inadmissible prejudicial evidence of prior bad acts seeping into a criminal trial. (Pp. 13-15)

2. In addition to suffering from similar infirmities to those inherent in other-crimes evidence, the domestic-violence-restraining-order testimony bore an additional stigma -- it told the jury that a judge had found Vallejo guilty of domestic violence in this matter. That evidence not only fostered the suggestion that Vallejo was guilty of the charges against him, but told the jury that a judicial officer believed the victim, thus bolstering her credibility. Standing alone, the domestic-violence-restraining-order evidence was highly damaging to Vallejo's case. Together with the serial references to his prior bad acts, that evidence had a real potential to prejudice Vallejo. (Pp. 15-17)

3. For a curative instruction to pass muster, it must be firm, clear, and accomplished without delay. This Court has consistently stressed the importance of immediacy and specificity when trial judges provide curative instructions to alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial. A single curative instruction may not be sufficient to cure prejudice resulting from cumulative errors at trial. Here, the instruction did not fulfill its purpose; it was not clear or sharp enough to achieve its goal. The charge failed to identify what was "blurted out" or what information was "not part of the case." (Pp. 17-21)

4. Because the jury instruction was inadequate, it must be assumed that the jurors took into account all of what transpired at trial, and there can be no confidence that Vallejo's convictions for kidnapping, robbery, terroristic threats, and assault were based only on admissible evidence. Thus, a new trial is required. (Pp. 21-22)

Judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for proceedings consistent with the principles to which the Court has adverted.

JUSTICE RIVERA-SOTO, DISSENTING, is of the view that when, as here, Vallejo fails to tender any form of a curative instruction; and when, as here, Vallejo also fails to object to the curative instruction given, our polestar should be whether the end result of that trial was fair. Given the quantum and quality of the State's case, the conclusion is inescapable: Vallejo was fairly convicted of the crimes for which he stood charged.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, WALLACE, and HOENS join in JUSTICE LONG'S opinion. JUSTICE RIVERA-SOTO filed a separate dissenting opinion. JUSTICE ALBIN did not participate.

The opinion of the court was delivered by: Justice Long

Argued January 6, 2009

Defendant was convicted of a passel of offenses arising out of the alleged kidnapping and restraint of the victim, with whom he had been in a romantic relationship. During a short trial, prior incidents of domestic violence and the existence of a restraining order against defendant were referenced by various witnesses, without objection. An immediate curative instruction was not given, although an ambiguous instruction did issue at the end of the trial. The Appellate Division determined that the N.J.R.E. 404(b) evidence was inadmissible and that the curative instruction was no model, but concluded that even if the instructive was inadequate, the error was not capable of producing an unjust result in light of the overwhelming evidence in the case.

We disagree. This brief trial was poisoned by the recurring admission of evidence of other crimes and wrongdoings by defendant, and by reference to the domestic violence restraining order against him. The trial judge's curative instruction was too little, too late. As a result, defendant was denied the fair trial to which all defendants, regardless of the strength of the case against them, are entitled. Therefore, a new trial is required.


Defendant Diego Vallejo was indicted for (1) first-degree kidnapping, N.J.S.A. 2C:13-1(b)(2); (2) second-degree robbery, N.J.S.A. 2C:15-1; (3) second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and (4) third-degree terroristic threats, N.J.S.A. 2C:12-3(a). At trial, the following evidence was adduced.

In 2005, defendant and Miryam Vera,*fn1 first cousins, were in a dating relationship and living together in defendant's parents' home. Her family disapproved of their relationship, which apparently had been rocky. On May 21, 2005, Vera left work around 11:30 p.m. and attempted to pick defendant up at his place of employment. When she arrived, she was unhappy to find him absent, and so she drove around for a while contemplating ending their relationship. Defendant called about an hour later, and Vera drove home. Upon her arrival, she went straight into their bedroom, where she found defendant, and immediately the two began to argue. After a while, Vera left the bedroom to use the bathroom and then returned.

According to Vera, she subsequently attempted to leave the bedroom again, but defendant locked the door and held on to her in order to keep her from exiting. At some point during the incident, Vera said that she was lying down on the bed when defendant hit her once in the back of the head and between the legs. Vera also testified that defendant threatened to cut her face if she left. According to her testimony, when Vera had to use the bathroom, she was forced to urinate in a bucket because defendant would not let her leave the room. Vera became tired and went to sleep on the bed, while defendant slept on the floor.

According to Vera, throughout the incident, defendant repeatedly asserted that he did not want her to leave and that he would hurt her if she left. She awoke the next day at about 1:30 p.m. and tried to leave, but defendant stood by the door and repeatedly unpacked her bag as she attempted to pack it.

Vera stated that defendant was "pushing [her] around," yanking her arm, and screaming, and that she was crying. The noise was heard by defendant's father, who asked them to open the door. Once defendant opened it, Vera ran across the hallway into defendant's parents' bedroom; she then telephoned her mother, Rosario Juarez, for help. Defendant's father told defendant to let Vera pack and leave, but once she came back into the room and attempted to do so, defendant again closed the door and refused to let her leave. At that point, Vera's mother arrived.

Vera testified that Juarez knocked on the locked door and asked defendant to let Vera out, threatening to call the police if defendant did not comply. Approximately ten minutes later, the police arrived, and at an officer's request defendant opened the door. Defendant yanked Vera's purse from her hand and ran out of the bedroom with it. Vera then went downstairs where she found her mother and Officer Paul Braconi. Vera told Officer Braconi what had happened, and defendant denied taking Vera's purse. The purse was later found and returned to Vera.

Juarez testified that at some time after 2:00 p.m., she received a phone call from Vera, asking her to come and help her because defendant was hitting her. At approximately 2:30 p.m., Juarez arrived at the home. She testified that she heard her daughter screaming, immediately went upstairs to the bedroom, and repeatedly asked defendant to open the door. Juarez testified that she could hear her daughter inside the room screaming and crying and asking defendant to let her go. Soon after, defendant's parents arrived. Defendant's father knocked on the door and told defendant to open the door. Defendant did not comply. Juarez threatened to call the police, and when defendant refused to open the door, she went outside and called 911.

After the police arrived, Juarez entered the house with them and saw Vera. According to Juarez, Vera's face looked as though she had been crying all night. Juarez did not notice any injuries on Vera's body, but later observed bruises on her arms.

Officer Braconi testified that when he first arrived at the house, he encountered Vera inside the house but outside of the bedroom. Vera was upset and said that she wanted to leave, but her boyfriend would not allow her to do so and that he had taken important belongings of hers without which she could not go. In Braconi's presence, defendant grabbed Vera's arm and told her that she could not leave.

Braconi described the bedroom as being in a state of disarray. He observed items that had been knocked over, a laptop computer on the floor, a "mattress-type thing" that had been tossed to the side, and a bucket. Braconi also observed abrasions on Vera's arms, which he believed were consistent with her claims regarding defendant pulling her purse strap. Vera later provided police with a formal statement, and pictures were taken of her bruises.

Prior to the trial, a N.J.R.E. 104 hearing had been held regarding a prior domestic violence incident between Vera and defendant. The trial judge denied the State the ability to refer to that incident. Despite that ruling, Vera, Juarez, and Braconi provided testimony that alluded to that prior incident and others.

The first remark came near the beginning of Vera's direct examination:

Q: Now, Miriam, drawing your attention to the early part of May 21st of 2005, can you explain to us what happened that day?

A: Okay, I got confused when you said May. I thought it was the incident in East Brunswick. All right, this one is the one that happened ...

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