July 8, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS DASILVA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-2254.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2009
Before Judges Wefing and Parker.
Defendant Luis DaSilva appeals from a judgment of conviction entered on August 4, 2004 after a jury found him guilty of first degree felony murder, N.J.S.A. 2C:11-3a(3); first degree murder, N.J.S.A. 2C:11-3a(1) and (2); first degree robbery, N.J.S.A. 2C:15-1; third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third degree receipt of stolen property, N.J.S.A. 2C:20-7.*fn1 After the appropriate mergers, defendant was sentenced to an aggregate term of forty-five years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The charges against defendant arose out of an incident in the early morning hours of November 4, 2002, in which Felix Chininin, a twenty-year-old Newark cab driver, was shot in the head and killed, apparently during a robbery of a portable DVD player he had in his cab and the cab fare he had collected during his shift.
There were no eyewitnesses to the shooting but, shortly thereafter, a passerby who did not know Chininin saw him staggering in the street, his head bloody. The witness notified police, who responded immediately. Chininin was transported to the hospital where he died shortly thereafter. At 5:30 a.m. that morning, Chininin's cab was reported parked in a driveway in Elizabeth. A few days later, an anonymous caller to the cab company identified defendant as the shooter. The caller said she was a relative of defendant's.
Investigators ultimately identified defendant, who had in his possession Chininin's driver's license, wallet and the portable DVD player when he was arrested. Chininin was shot with a gun identified from ballistic tests as having been stolen from a Newark police officer who lived in the same building as defendant. Defendant had sold the gun to an acquaintance after the shooting. The acquaintance was subsequently arrested and linked defendant to the gun.
When he was arrested on May 4, 2003, defendant was staying at the Belleville Motor Lodge under another person's name. He was in possession of a Brazilian passport, credit cards and social security cards, all in the names of other people. He had also recently bleached his hair blond and was apparently preparing to flee to Brazil.
Defendant testified at trial and denied all of the allegations but did admit to sending his family to Brazil, stealing a passport and social security card, and changing his appearance.
In this appeal, defendant argues:
THE JURY INSTRUCTION ON REASONABLE DOUBT IMPERMISSIBLY DEVIATED FROM THE MODEL CHARGE SET FORTH IN STATE V. MEDINA. (Not Raised Below)
THE PRESENCE OF A PRINCIPAL STATE WITNESS IN PRISON GARB, IN VIOLATION OF STATE V. RUSSELL, ALONG WITH THE TESTIMONY OF THAT SAME WITNESS THAT DEFENDANT HELPED HIM IN HIS ILLEGAL-DRUG BUSINESS -- A POINT UNRELATED TO THIS CASE -- SERVED TO DENY DEFENDANT A FAIR TRIAL. (Partially
THE AGGREGATE LEOTEF PENALTIES ABOVE $30 MUST BE ELIMINATED, AS SHOULD THE PENALTIES ON THE MERGED COUNTS.
Defendant's argument regarding the jury instruction on reasonable doubt lacks merit. No objection to the charge was raised before the trial court and it does not meet the plain error standard. R. 2:10-2; State v. Bunch, 180 N.J. 534, 541 (2004).
Specifically, defendant cites the failure of the trial court to include the word "possible" in the charge on reasonable doubt. The model charge states: "In criminal cases the law does not require proof that overcomes every possible doubt." State v. Medina, 147 N.J. 43, 61 (1996), cert. denied, 520 U.S. 1190, 117 S.Ct. 1476, 137 L.Ed. 2d 688 (1997) (emphasis added). When charging the jury in this case, the court omitted the word "possible" and stated: "[I]n criminal case[s] the law does not require proof that overcomes every doubt." In its preliminary instructions to the jury, however, the court did include the word "possible" in the reasonable doubt charge.
In State v. Wakefield, 190 N.J. 397 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1074, 169 L.Ed. 2d 817 (2008), the Supreme Court compared preliminary instructions and the jury charge on reasonable doubt with the standard set out in Medina, supra, 147 N.J. at 61. There, as here, the trial court had tailored the charge and failed to include the final two sentences of the Medina charge that explain when a defendant should and should not be found guilty. Wakefield, supra, 190 N.J. at 473-74. The Court found it troubling that the final two sentences had not been included in the charge but did not find plain error. Id. at 474-75. Rather, the Court held that omitting the final two sentences of the Medina charge did not, when taken as a whole with the remainder of the jury instructions, lessen the State's burden of proof and create a due process violation. Ibid.
Unlike in Wakefield, here the trial court correctly stated the standard in its preliminary instructions. The failure to include the word "possible" in one section of the charge did not constitute plain error, considering the entire charge. We find no plain error in the charge.
Defendant next argues that the trial court erred by not declaring a mistrial when Carlos Marquinez testified that defendant had driven him around while he would "pick up stuff, drugs."
N.J.R.E. 404(b) states that "[e]xcept as otherwise provided . . . 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." Whether a trial court has properly allowed evidence of prior bad acts is reviewed under an abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991). The trial court is in the best position to determine whether a curative instruction will remove any prejudice to a defendant so that a mistrial would not be warranted. State v. Loftin, 146 N.J. 295, 365-66 (1996); State v. Zapata, 297 N.J. Super. 160, 175 (App. Div. 1997) (citing State v. Winter, 96 N.J. 640, 646-47 (1984), certif. denied, 156 N.J. 405 (1998)).
Here, the court denied defendant's motion for a mistrial and gave a curative instruction to the jury. Marquinez was not even clear as to whether defendant was involved in picking up the drugs, but he was certain that defendant was driving. The full exchange was as follows:
[Prosecutor]: At any time would [defendant] drive for you?
[Prosecutor]: Under what circumstances, and just tell us why?
[Marquinez]: All right. Like he used to drive me off and like [sic] to pick up stuff, drugs.
The prosecutor explained that he was surprised by the testimony because he had anticipated Marquinez testifying that defendant drove because Marquinez did not have a license. After Marquinez made the statement about defendant and drugs, defense counsel moved for a mistrial. The motion was denied, and the court gave the following curative instruction:
All right, ladies and gentlemen, you are to disregard the last answer by the witness. To the extent that it contained the word "drugs" should be entirely disregarded by you. There's nothing in this case about drugs or any connection that the defendant may have to drugs, or that the defendant had any knowledge whatsoever about any drug activity. So that should be totally disregarded.
There was also a stipulation by both parties that Marquinez had stated, in an interview prior to his testifying at trial, that defendant was not involved in Marquinez's drug activities. This stipulation was read as part of the jury charge.
The New Jersey Supreme Court ruled on the effectiveness of curative jury instructions in State v. Winter, 96 N.J. at 646-47. There, an expert witness in a manslaughter case mistakenly testified as to statements someone told him the victim had made. Id. at 644. The witness stated that the victim had said something along the lines of being afraid that someone was trying to murder her. Ibid. Defense counsel moved for a mistrial and the trial court denied the motion, but provided a curative instruction. Ibid.
Despite the prejudicial nature of the witness's testimony, the Court held that the curative instruction was adequate. Id. at 648-49. The Court began by noting that in many trials some inadmissible evidence will inevitably come in. Id. at 646. Moreover, when an error of constitutional proportions has not been raised, any error that may exist must "have been clearly capable of producing an unjust result" to warrant a new trial. Id. at 648 (quoting State v. LaPorte, 62 N.J. 312, 318-19 (1973)). The Winter Court looked to LaPorte, in which testimony that the defendant was wanted in another county for robbery was adequately addressed in a curative instruction. Id. at 647-48 (citing LaPorte, supra, 62 N.J. at 318-19).
The Court then looked at the instruction given at the defendant's trial in Winter and the entirety of the State's case. The Court noted that the judge acted quickly to instruct the jury to disregard the testimony. Id. at 649; see also State v. Papasavvas, 163 N.J. 565, 614 (2000) (noting the immediacy of a curative instruction when ruling that a psychiatric expert witness's direct comment on defendant's guilt did not warrant a mistrial). The Court further noted that, although largely circumstantial, the State's case was strong enough to support a finding that the remark had not created an unjust result. Winter, supra, 96 N.J. at 649-50.
Here, immediately after Marquinez's testimony, the court issued a curative instruction to disregard the comment about drugs and any implication that defendant was in any way involved with them. Unlike the comments in Papasavvas or Winter, Marquinez's comment did not have any bearing on defendant's guilt as to the particular charges being tried. And unlike LaPorte, there was no direct statement that defendant was involved in another crime. The curative instructions in each of these cases were sufficient to overcome an unjust result. Moreover, the court here took the further precaution of having the parties stipulate that defendant was not involved in drug activities. We are convinced that the trial court correctly denied the motion for a mistrial and properly instructed the jury.
Defendant further argues that Marquinez's testimony warranted a mistrial because he not only testified as to a possible prior bad act of defendant, but because he testified in prison garb. Defendant did not object to the prison garb at trial. We must determine, therefore, whether it rises to the level of plain error. R. 2:10-2. We note initially that when the prosecutor requested that Marquinez's shackles be removed, defense counsel objected. The court, nevertheless, ordered the shackles removed.
A defense witness should not be required to testify wearing prison garb or restraints unless there is a compelling need. State v. Artwell, 177 N.J. 526, 538-39 (2003). Since Marquinez was the State's witness, however, his appearance in prison garb gave defendant the opportunity to discredit his testimony.
Defendant relies on State v. Russell, 384 N.J. Super. 586 (App. Div. 2006), in support of this argument. There, one of the State's witnesses, an alleged co-conspirator, testified at trial while wearing prison garb and shackles. Id. at 591-92. We reversed defendant's conviction because of the manner in which the State's witness testified, extending the holding in State v. Artwell, 177 N.J. at 539, to the State's witnesses, but we confined the holding "to any State's witness in a future trial in this case." Russell, supra, 384 N.J. Super. at 599. More importantly, the New Jersey Supreme Court explicitly overruled Russell in State v. Kuchera, ___ N.J. ___, ___ (2009) (slip op. at 24), calling its "proscription on prison garb . . . to be overbroad" and concluding that "as a matter of law or constitutional doctrine, we cannot accept the Appellate Division's conclusion in Russell that a witness can never testify in prison garb." Under the totality of the circumstances, we are convinced that Marquinez's testimony while wearing prison garb does not constitute plain error.
Defendant correctly argues, and the State concedes, that the penalties imposed by the trial court are improper. On the record, the trial court imposed a $30 LEOTEF penalty, but the judgment of conviction reflects a $150 LEOTEF penalty. The judgment further indicates a VCCB penalty of $300 and an SNSF penalty of $375. As a result of the merged charges, the VCCB penalty should be reduced to $100, and the SNSF should be reduced to $150. The State agrees. Accordingly, we remand for amendment of the judgment of conviction to reflect the correct penalties.
Affirmed; remanded solely for correction of the judgment of conviction.