On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-12-1728.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Gilroy and Chambers.
In December 2004, a Passaic County Grand Jury returned Indictment No. 04-12-1728-I, charging Osmani Then, Lisandro Then-Mendez, Luis Feliz, Ariel Mojena, Winston Beard, and Irvin Estanislao with the following offenses: second-degree aggravated assault on Suquan McDonald, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6 (count one); second-degree aggravated assault on Alex Perez, N.J.S.A. 2C:12-1b(1) and N.J.S.A. 2C:2-6 (count two); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three). The indictment charged Then, individually, with third-degree hindering apprehension, N.J.S.A. 2C:29-3a(3) and N.J.S.A. 2C:29-3b(1) (count four); and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count five).
In this appeal, Then, Then-Mendez, and Beard challenge their convictions following a joint jury trial on seventeen dates between May 31 and June 23, 2006.*fn2 The jury convicted Then of the lesser-included offense of third-degree purposely causing or attempting to cause a bodily injury to McDonald with a deadly weapon (count one); second-degree purposely causing or attempting to cause a serious bodily injury to Perez (count two); third-degree possession of a weapon for an unlawful purpose (count three); third-degree hindering apprehension (count four); and fourth-degree tampering with evidence (count five).
The jury convicted Then-Mendez of the lesser-included third-degree offense of purposely causing or attempting to cause a bodily injury to McDonald with a deadly weapon (count one); second-degree purposely causing or attempting to cause a serious bodily injury to Perez (count two); and third-degree possession of a weapon for an unlawful purpose (count three). The jury found Beard guilty of the lesser-included offense of third-degree purposely causing or attempting to cause a bodily injury to McDonald with a deadly weapon (count one); the lesser-included offense of fourth-degree recklessly causing a bodily injury to Perez with a deadly weapon (count two);*fn3 and third-degree possession of a weapon for an unlawful purpose (count three).
The court sentenced Then to an aggregate seven-year prison term and Then-Mendez to an aggregate six-year prison term; both sentences were subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2a. Beard was sentenced to three years probation, conditioned on serving sixty days in the county jail.
On appeal, Then raises the following issues:
THE TRIAL COURT'S ERRONEOUS INSTRUCTION TO THE JURORS ON THE PERMISSIBLE USE OF PRIOR BAD ACT EVIDENCE THAT WAS OFFERED BY THE DEFENSE DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND REQUIRES A REVERSAL OF HIS CONVICTION.
THE PROSECUTOR'S COMMENTS DURING SUMMATION FAR EXCEEDED THE SCOPE OF FAIR COMMENT AND DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL REQUIRING A REVERSAL OF HIS CONVICTION.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL WHEN IT BECAME CLEAR THAT THE ASSISTANT PROSECUTOR WAS USING HIS PEREMPTORY CHALLENGES TO EXCLUDE HISPANICS FROM THE JURY CONTRARY TO DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL.
THE SENTENCE IMPOSED BY THE TRIAL COURT WAS MANIFESTLY EXCESSIVE.
DEFENDANT JOINS IN ANY AND ALL ARGUMENTS RAISED ON APPEAL TO THIS COURT BY CO-DEFENDANTS, LISANDRO THEN-MENDEZ AND WINSTON BEARD.
Then-Mendez raises the following issues:
THE PROSECUTOR DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY ARGUING IN SUMMATION THAT DEFENDANT'S STATEMENT SHOULD NOT [BE] BELIEVED BECAUSE IT WAS GIVEN AFTER DEFENDANT HAD RECEIVED HIS MIRANDA*fn4 WARNINGS. (Not Raised Below).
THE COURT'S INSTRUCTION, WHICH LIMITED THE JURY'S USE OF [N.J.R.E.] 404(B) EVIDENCE REGARDING INSTANCES OF PAST VIOLENCE BETWEEN DEFENDANT AND THE VICTIMS TO PROOF OF DEFENDANT'S MOTIVE OR INTENT, UNDERMINED THE DEFENSE BY PRECLUDING THE JURY FROM USING THIS EVIDENCE IN CONSIDERING DEFENDANT'S SELF-DEFENSE CLAIM.
INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL.
THE STATE'S DISPROPORTIONATE EXERCISE OF PEREMPTORY CHALLENGES AGAINST BLACK JURORS DEPRIVED DEFENDANT OF HIS RIGHTS TO TRIAL BY AN IMPARTIAL JURY AND TO EQUAL PROTECTION OF LAW, NECESSITATING REVERSAL.
DEFENDANT'S SENTENCE IS EXCESSIVE.
Beard raises the following issues:
FACTUAL MISSTATEMENTS MADE BY THE PROSECUTOR IN SUMMATION, AND THE PROSECUTOR'S FAILURE TO ACKNOWLEDGE OR CORRECT THE MISSTATEMENTS WHEN GIVEN AN OPPORTUNITY TO DO SO, PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE ADMISSION OF TESTIMONY WHICH DIMINISHED THE PRESUMPTION OF THE DEFENDANT'S INNOCENCE (RAISED IN PART BELOW).
(A) ELICITING TESTIMONY FROM OFFICER KLEIN THAT REFERRED TO ALEX PEREZ AND SUQUAN MCDONALD AS "THE VICTIMS" CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
(B) ELICITING TESTMIONY FROM BLANCA DURAN THAT ALEX PEREZ AND SUQUAN MCDONALD WERE "JUST DEFENDING THEMSELVES" CONSTITUTES HARMFUL ERROR.
OFFICER KLEIN'S TESTIMONY THAT HE WAS DISPATCHED TO THE SCENE ON A REPORT OF "SEVERAL MALES ASSAULTING TWO OTHER MALES WITH ROCKS, BATS, STICKS, AND OTHER OBJECTS" VIOLATED STATE V. BANKSTON[, 63 N.J. 263 (1973)] AND CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED PLAIN ERROR BY PERMITTING THE PROSECUTOR TO PLAY A RECORDING OF BLANCA DURAN'S 9-1-1 CALL DURING HIS OPENING STATEMENT.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR MISTRIAL BASED ON STATE V. GILMORE[, 103 N.J. 508 (1986)].
We reject defendants' arguments and affirm their convictions and sentences.
Because the witnesses related differing versions of the incident that led to the charges against defendants, we set forth the testimony in substantial detail.
On August 9, 2004, Perez and McDonald, who had known each other since elementary school, were on a friend's porch in Paterson. Also present were Angeline Cerat, Jennifer Blizzard, and Niasi Tucker. Perez is of Puerto Rican descent; the others are African-American.
Around 6:00 p.m., as Perez and McDonald walked toward a grocery store at the end of the block, they saw a Lincoln Towncar parked at the corner. Perez thought he recognized the two men sitting in the car and began talking to them. He realized the driver was Then-Mendez, and remembered that he had "problems" in the past with him and his brother, Osmani Then, including a confrontation with Then in 2000, which involved a fight among fifteen men armed with bats and golf clubs. Perez was stabbed during the fight.
After recognizing Then-Mendez, Perez yelled at him, called him names, and challenged him to get out of the car and fight. Perez warned Then-Mendez: "I'm going to get your brother." As Then-Mendez drove the car away, Perez kicked it.
McDonald and Perez went to a friend's yard and retrieved golf clubs and a bat and returned to the porch. Around 7:00 p.m., the people on the porch noticed a burgundy/red Honda circling the block several times. Because the windows were tinted, they could not see who was inside. After seeing the car for the third time, McDonald realized that "something was about to go down." Suddenly, a group of about eight men with bats and sticks came around the corner, running toward the porch. They threw rocks and pieces of metal at McDonald.
McDonald asserted that when the men ran toward the house, Perez ran into the street with a baseball bat in his hand and McDonald followed, holding a golf club. Almost immediately, Then hit Perez in the back of the head with a weapon. Perez fell to the ground where several men surrounded him. When he tried to stand up, Then "started smashing him on the head with the bat." Perez collapsed.
According to McDonald, while he was trying to help Perez, he was attacked by Then-Mendez, Beard, Estanislao, and another man; Then-Mendez and Beard had bats and the other two had golf clubs. McDonald fought the attackers by swinging his golf club, which broke in half when it struck Then-Mendez's bat. McDonald fell to the ground and covered his head with his arms. The men continued to strike him with their weapons. The last face that he saw was Then's, who hit him with a bat as he tried to get up.
Perez testified that when he saw Then in the street, he grabbed his bat and ran out to meet him. He never hit anyone, as he was immediately hit in the back of the head and knocked unconscious.
According to Cerat, a group of about ten men ran down the street, all carrying weapons, throwing rocks and metal at McDonald. Perez ran into the street and was immediately hit in the head with a baseball bat. McDonald followed Perez into the street and fought with four people. When his golf club broke, the men kept hitting him on the back with baseball bats. Tucker saw the men running down the street and Perez and McDonald running off the porch toward them. Blizzard said that the men dragged Perez into the street and beat him, continuing to hit him as he lay on the ground.
Two women who lived in the neighborhood, but who did not know Perez or McDonald, also testified. Blanca Duran saw people fighting in the street, and several men with bats attacking two men. The two men "being hit... were defending themselves and they didn't have baseball bats." One of the men was lying on the ground, and other men were hitting him.
Duran called 9-1-1. Because she had trouble speaking English, she asked her twelve-year-old daughter to talk to the operator. The 9-1-1 call was played for the jury several times. The record on appeal does not contain a transcription of the call. According to the prosecutor's closing argument, Duran's daughter told the operator that seven men were hitting a man with bats.
Yolanda Rivera described the fight as between a group of Hispanics and two African-Americans. She said that the Hispanics were armed with bats and metal sticks, but she did not see anything in the hands of the African-Americans. Rivera recalled that the man on the ground covered himself and did not fight back while the Hispanics continued to "stomp him." The second African-American tried to pull the Hispanics off the man on the ground, but other Hispanics with bats attacked him. One of the Hispanic men told people in the street not to call the police. Despite these warnings, Rivera ran to her basement to call 9-1-1. At trial, Rivera could not identify any of the Hispanic men she saw that day. She nevertheless testified that the Then brothers looked similar to the person who told the onlookers not to call the police.
When police officer Robert Klein arrived, he saw Perez sitting on the porch, in pain and covered with blood. Perez told Klein that seven or eight "Dominicans" who threw rocks and hit him with bats and golf clubs had assaulted him. Both Perez and McDonald said they could identify the men who attacked them.
Blizzard gave Klein the license plate number of the red Honda that had circled the block. Detective Juan Garcia used the license plate number to find the addresses of the vehicles' registered owners. When he went to the address, he saw the car, and he spoke to Feliz. The police investigation of the car led them to Then and Then-Mendez. The police directed Feliz, Then, and Then-Mendez to go to the police station.
Immediately following the fight, McDonald and Perez were taken to the hospital. McDonald was treated and released. Perez developed a coma and remained hospitalized for several weeks. He underwent cranial surgery to remove a blood clot from the right side of his brain.
McDonald went to the police station and provided a statement. The police showed him numerous photographic lineups, from which he identified Beard, Estanislao, Then-Mendez and Then. Perez was unable to provide the police with a statement until September 7, 2004, when he identified Then-Mendez, Then, Feliz, and Estanislao from photographic arrays; he identified Feliz, Then, and Then-Mendez by name.
The day after the fight, Then gave Detective Garcia a formal statement. He told Garcia that he learned that "some guys" were looking for him. He drove to Redwood Avenue with Estanislao and Feliz, got out of the car, and approached the porch where Perez and McDonald were "hanging out." Perez and McDonald came down from the porch with a bat and a golf club, respectively. Perez started swinging the bat. Later that evening, Then threw the bats in the river.
Then-Mendez told Garcia about his past problems with Perez and McDonald, saying that they "wanted to find reason to fight." He claimed that during the October 2000 fight, Perez stabbed him. He said that the night before the August 2004 fight, Perez approached his car saying, "What's up, niggers?" and "Get out of the car." When ...