On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-486.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued on February 24, 2010
Before Judges Axelrad and Espinosa.
Defendant Carlos Ramon Gutierrez was indicted on charges of murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(d) (count three). Defendant appeals from his convictions on all charges and sentence. We affirm.
The charges arose from the stabbing death of Jose Riascos on February 22, 2006 outside a bar where defendant was employed as a bouncer.
The victim, Jose Riascos, and a friend, Juan Saavedra, went to the QVOS bar in Linden after spending the evening at another bar watching a soccer match and drinking two bottles of Scotch. Two bouncers were working at QVOS that night, defendant and another man called Cash.
Riascos and Saavedra bought a third bottle of Scotch at QVOS and stayed until the bar closed. Saavedra stated that they were intoxicated but wanted to continue partying. Saavedra left QVOS first, and walked across the street to the Ford Explorer he was driving that night. After Riascos joined him, Saavedra made a u-turn and pulled up in front of QVOS. Riascos, seated in the passenger seat, turned the radio up, very loud.
At closing, there was an unrelated argument outside the bar between two girls who had been arguing inside QVOS earlier that evening. The girls' argument was the only problem that occurred inside QVOS that night. Juan Camilo Victoria (Camilo), the owner of QVOS, told Cash to go outside, see if everything was okay and tell them to go away. None of the witnesses testified that he made a similar request to defendant in response to the loud radio.
Fabian Huerfano left QVOS after closing with Mauricio Lara. He observed Saavedra and Riascos in the Explorer parked in front of QVOS, drinking, with the radio very loud. Huerfano and Lara approached the passenger's side and asked Riascos to lower the music and go away because the police would come. Riascos argued with Huerfano and took a swing at him. Huerfano kicked the passenger door and the two occupants of the Explorer got out. Saavedra tried to find an anti-theft club to use in self-defense but was unable to do so.
Huerfano testified that Riascos started "to go with [him]," and that Lara was holding him. Paul Seleita and Danny Zambrano were on his left. Danny Zambrano ran up to Riascos on the sidewalk and challenged him to fight one on one. They threw punches at each other but did not hit each other. Riascos stepped back, toward the street. Zambrano's cousin, Richard Peralta (Colin), asked him if he was serious, if he was "really gonna waste our time with some old dude." Zambrano did nothing after that and went back upstairs toward the driveway.
As Zambrano was walking away from Riascos, defendant came out of the bar and asked him, "What's going on? What's the beef?" Defendant then walked down the driveway to the street.
Defendant started arguing with Riascos. Defendant and Riascos moved toward the middle and then to the farther side of the street, where they continued to yell and argue. Defendant was observed hitting the victim. None of the witnesses observed any weapons.
Saavedra testified that when he next saw Riascos, he was on the other side of the street from the Explorer, attempting to cross the street toward QVOS. His shirt was ripped off and he was starting to fall down. Saavedra asked him what happened but Riascos was unable to talk. Saavedra tried to pick him up until he saw that Riascos was bleeding. He called 9-1-1 and waited for the police to arrive.
Colin drove Huerfano, Zambrano, "George" and defendant away from the scene in Zambrano's car. Huerfano started talking about what he believed had happened, that a car had run over Riascos. He observed blood on defendant's right hand. Defendant looked at Huerfano and stated, "I don't know why I did this, I don't know why I stabbed the guy." Colin drove them to George's house, where Huerfano, George and defendant got out and entered the house. Defendant continued to repeat, "I don't know why I did this, I don't know why I stabbed the guy." Huerfano and defendant later went to Lara's house. Lara asked him about a mark on his face. Defendant explained that Riascos had thrown his jacket on defendant's face and that he had then stabbed him. Defendant continued to repeat to Huerfano and Lara that he "stabbed the guy," and asked Lara to take him home.
Defendant later called Camilo, the owner of QVOS. He asked about the police and asked Camilo to say he wasn't working that night. Defendant apologized, stating "I'm sorry, I lost it."
A knife was found approximately one block away from QVOS later in the day. Forensic testing showed that blood on the knife was Riascos' and that there was a mixture of DNA on the handle of the knife. The DNA analysis was inconclusive. Although the tests excluded Lara, Huerfano, Saavedra, and Zambrano as contributors to the DNA mix, defendant could not "be excluded as a potential contributor to the mixture."
Dr. Zhongxue Hua, Chief Medical Examiner for Union County, testified that Riascos suffered six sharp force injuries plus an additional seven or eight abrasions on the body.*fn1 Dr. Hua testified that the knife wounds on victim and cuts on his clothing were consistent with the knife found near the scene of the stabbing, a single edge knife with a blade about three inches long and a maximum width of seven-eights of an inch.
Four of the wounds were on the front of the body: (1) a v-shaped wound at the right side of the chest, slightly above and lateral to the right nipple; (2) a wound slightly below and to the right of the right nipple; (3) a wound in the midline area involving both the right and left chest; and (4) a wound on the right side between the chest and the abdominal area. On the victim's right side, the fourth rib was cut through, an injury that corresponded to the v-shaped wound at the right side of the chest. On the victim's back, there were two stab wounds: one at the right side and one on the left side.
Dr. Hua testified that the cause of death was multiple sharp force injuries. The autopsy report noted that the right side of the lung was pierced through and the right side of the heart was cut through. Dr. Hua testified that this injury resulted in 500 cubic centimeters of blood collecting in the pericardial sac which could in itself be lethal. In addition, he stated that a stab wound slightly below the chest bone had cut the mamillary artery, which would cause extensive bleeding.
The following exchanges between the court and counsel are relevant to this appeal.
Before the jury selection, defense counsel raised an issue regarding the attendance of defendant's family members during jury selection:
[DEFENSE]: The only other issue, Judge, I would bring up it is anticipated that this trial at least for jury selection will have a large pool of jurors and I've instructed my client's family that because of the number of accommodations in the courtroom, there would probably not be room for them to be here for jury selection . . . .
I would just ask that the Court put that on the record that they are free to be here throughout the course of the trial but during the course of jury selection due to the room there may not be sufficient room. THE COURT: Mr. Campagna, you've stated what is absolutely true. This is one of the smaller criminal courtrooms. My experience is that it will fit just over 80 people, maybe 85. We have in that area coming and while this is an open courtroom and anybody is permitted to be inside, of course, it is subject to making - - accommodating the jurors first. ...