August 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS RAMOS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-09-03165.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2010
Before Judges Cuff, Payne and Waugh.
A jury found defendant guilty of murder, N.J.S.A. 2C:11-3a(1) and (2) (Count 1); second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count 3); third degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count 4); possession of a weapon (a firearm) for an unlawful purpose, N.J.S.A. 2C:39-4a (Count 5); unlawful possession of a handgun, N.J.S.A. 2C:39-5b (Count 6); and certain persons not to have weapons, N.J.S.A. 2C:39-7a (Count 7). After merging Count 5 with Count 1, the judge imposed a term of life imprisonment subject to a No Early Release Act (NERA)*fn1 85% period of parole ineligibility of 63.75 years. Count 4 merged with Count 3, and the judge sentenced defendant to a concurrent ten-year term of imprisonment subject to a NERA period of parole ineligibility. On Count 6, the judge sentenced defendant on Count 3 to a concurrent five-year term of imprisonment. On Count 7, the judge sentenced defendant to a ten-year term of imprisonment, with five years of parole ineligibility, consecutive to the sentence imposed on Count 1. The appropriate fees, fines, assessments and penalties were also imposed.
Defendant's convictions arise from the September 3, 2006 shooting of two men, David Perez and Jose Maldonado, while they sat in a car outside a Crown Fried Chicken (CFC) on 24th and Federal Streets in Camden. Perez was pronounced dead at the scene and Maldonado was wounded.
At trial, in addition to the testimony of investigating police officers and medical experts, Maldonado and several other eyewitnesses testified. A description of the testimony of Maldonado, Zulma Rivera, and Jason Nettles is provided to present a full account of the events surrounding the shooting as it relates to defendant's argument on appeal that the omission of an aggravated manslaughter charge requires a new trial.
Maldonado testified that he drove to CFC with Perez on September 3 at about 1 a.m. after a night of drinking. Maldonado parked outside CFC and waited outside the car while Perez entered the restaurant for five to seven minutes. Maldonado saw Perez leave CFC arguing with defendant "over a girl." Defendant and Perez continued their heated conversation until a girl pulled defendant toward 24th Street. Maldonado did not remember if defendant and Perez "peace[d] up" (made amends). At that point, Maldonado and Perez followed defendant to the corner and saw him walk towards a house party on 24th street.
Perez and Maldonado returned to their car and waited with the windows down for their food; Perez sat in the driver's seat. Maldonado was "messing with the radio" and Perez was relating the argument he had just had with defendant when gunshots were suddenly fired through the open window on the passenger side of the car. Maldonado said it seemed like the gunshots were fired a few inches from his face.
When Maldonado looked at Perez, he saw a hole in Perez's neck with "blood coming out."*fn2 Maldonado was shot in his left arm and in his leg. These wounds caused permanent nerve damage and loss of use of his arm from his elbow to his fingertips.
Zulma Rivera, known as "Yari,"*fn3 and her friend, Nitza, were planning on attending a house party on the evening of the shooting and took a cab to the party location near 24th and Federal streets where they ran into defendant. Yari knew defendant because he had dated one of her friends for a few months, but she knew him as Pete. According to her, defendant wore a long white t-shirt underneath a black "hoodie."
A few minutes following her arrival at the corner, Yari left defendant and Nitza and walked to CFC to use the bathroom; Nitza followed shortly thereafter. Yari testified that Perez entered CFC while she was in the bathroom, engaged Nitza in conversation, and she joined the conversation because she remembered Perez from school. According to Yari, while she and Nitza were in the midst of this conversation, defendant walked in and started talking to her. Perez and defendant started arguing because defendant thought Perez made a negative comment to him. Yari did not hear Perez say anything to defendant. Defendant jumped up and "pushed himself towards [Perez]" as if he was trying to scare him. Yari pulled defendant back and told him to calm himself.
Yari stated she stayed between defendant, Perez, and Nitza, but that defendant "wouldn't just leave it alone" and "kept making little comments about how that's his hood and he could do what he want[s]." Perez and defendant approached each other again as if they were going to fight. Yari grabbed them both by their shirts and pushed them away from each other. Yari testified that as they all left CFC, she grabbed defendant by his hoodie and walked with him out of the store in an effort to calm him.
Yari further testified that when she first encountered defendant that evening, he showed her a gun. She was concerned about defendant's anger because he was armed. Once defendant and Perez were in the street, however, she saw defendant and Perez shake hands, hug, and apologize. She thought the two had resolved their dispute. Perez got into his car in front of CFC and Yari encouraged defendant to come to the house party with her.
Yari testified she became more uneasy when one of defendant's friends "asked him where's the other gun at and he said his brother had it." She said defendant just kept telling her to go ahead and was pacing around with his hands in the front pocket of his hoodie, where he had a gun. She felt things began to escalate at that point. There was a crowd in front of Perez's car with "a whole bunch of people arguing." Yari saw defendant pull the gun from the front pocket of his hooded sweatshirt and walk to defendant's car. From the end of the sidewalk, "he started shooting at [Perez], but as he was shooting he was moving back, like walking away and then once he finished, he just ran off."
The State also called Jason Nettles to testify at trial. He had been arrested five days after the shooting for distribution of a controlled dangerous substance (CDS) in a school zone and was facing twenty-two years in prison. After questioning Nettles about his charges, investigators asked him about the shooting in front of CFC, and he gave a statement implicating defendant. At trial, Nettles stated he lied to investigators because they promised to help him with his drug charge, but the investigators broke their promise and failed to help him. He testified that he made up the story about the shooting and defendant's involvement and claimed that he did not actually know who was involved in the shooting. Following his recantation, Nettles' taped statement to investigators was played for the jury.
In his statement, Nettles relayed that he was at a house party near that area that night and saw defendant. He told the police that he had known defendant for a few years. He, like Yari, knew defendant as "Petey." Originally, Nettles told investigators that he saw defendant walk from the party towards CFC and then saw him standing with a group of friends on the corner near CFC. Nettles heard gunshots and then saw defendant and some of his friends run towards the party, get in their cars and leave. Everyone defendant was with left the party after the shooting. Nettles also told investigators that he saw defendant the day after the shooting, and he was boasting that he had "lawyer money" and was going to beat the charges.
At trial, Nettles also testified defendant could not have been the shooter because he could see defendant in his peripheral vision at the time he heard the gunshots. Moreover, over eighty percent of the people wore long t-shirts with hoodies over them on the night of the shooting and about twenty, out of the forty people on the street that night, were wearing black hoodies. Nettles claimed that prosecutors and the police fed him the details of his original statement and told him what to say.
Investigator Fawn Ackerman originally denied promising defendant anything in exchange for his statement, but eventually admitted that she did make promises. She also admitted to showing Nettles a surveillance tape of the shooting, but said she only did so after speaking to Nettles for about thirty minutes "to see if what he had to say made any sense."
On appeal, defendant raises the following arguments:
A JURY INSTRUCTION SHOULD HAVE BEEN GIVEN ON TWO DIFFERENT CLEARLY-INDICATED THEORIES OF AGGRAVATED MANSLAUGHTER (Plain-Error Standard Applies).
A FAR GREATER JUSTIFICATION FOR A PARTICULAR MURDER SENTENCE MUST BE GIVEN THAN WAS GIVEN HERE, WHEN THAT SENTENCE, UNDER THE NO EARLY RELEASE ACT (NERA), COULD POSSIBLY INVOLVE SUCH WIDELY VARYING AMOUNTS OF PAROLE INELIGIBILITY; TO REQUIRE LESS THWARTS THE GOALS OF THE CRIMINAL CODE WITH REGARD TO SENTENCING; MOREOVER, NO REASONS WERE GIVEN FOR THE CONSECUTIVE SENTENCE ON THE CERTAIN-PERSONS CONVICTION AND THAT INDIVIDUAL TERM WAS THE RESULT OF IMPROPER DOUBLE-COUNTING OF AT LEAST ONE AGGRAVATING FACTOR.
Defendant requested the trial judge to charge the jury on the lesser-included offense of passion/provocation manslaughter. In response to a direct question prior to the charge conference whether defendant sought any other lesser-included charge, defense counsel stated, "The only other thing I can think of is passion/provocation goes with the second degree of manslaughter and that's the only one I could think of offhand, Judge."
During the charge conference, the judge stated that he would only charge passion/provocation manslaughter as a lesser offense. In response to a statement by the trial judge that defendant did not seek either an aggravated manslaughter or reckless manslaughter charge, defense counsel stated, "That is correct, your honor." The judge responded that he did not believe either charge was appropriate.
Defendant now argues that the trial judge should have provided an instruction on aggravated manslaughter as a lesser included offense because "at least two of the three non-victim eyewitnesses to the shooting presented testimony that provided a clearly-indicated basis" for doing so. Although his trial counsel specifically declined to request an aggravated manslaughter charge, defendant maintains the judge had a duty to provide the instruction at his own volition. We disagree.
We review this argument as plain error. R. 2:10-2. Defendant must convince this court that the omission of this charge is an error "of such a nature as to have been clearly capable of producing an unjust result." Ibid. In the context of a jury charge, defendant must demonstrate there was a "'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Nero, 195 N.J. 397, 406 (2008) (quoting State v. Chapland, 187 N.J. 275, 288-89 (2006)).
Failure to charge a jury on an appropriate lesser-included offense is a violation of a defendant's right to a fair trial. State v. Short, 131 N.J. 47, 53-54 (1993).Absent a request by counsel, the trial judge had a duty to provide such an aggravated manslaughter instruction only if "the facts in evidence 'clearly indicate[d]' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). Stated differently, the trial judge only had an "independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate[d] that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). The Supreme Court has interpreted this standard to mean that only "if the evidence is jumping off the page  must the court give the required instruction." State v. Denofa, 187 N.J. 24, 42 (2006).
Here, defendant maintains that there are two theories under which the jury could have found him guilty of aggravated manslaughter instead of murder. The first is that "a juror may have found that defendant may not have been the shooter" but still may have believed that "he had a culpable role... as a person who riled the shooter into a state of mind that caused him to act violently toward the victim with a gun." See State v. Morales, 111 N.J. Super. 521, 525-27 (App. Div. 1970), (finding that a defendant could be held liable for aggravated manslaughter as a principal for handing a loaded gun to an angry associate and encouraging him to shoot the victim), certif. denied, 57 N.J. 433 (1971).
Defendant maintains this theory was supported by Nettles, who testified that defendant was too far away from the shooting to have been the perpetrator, and by Yari, who testified that one of defendant's friends had a gun, she saw defendant get his crew "hyped up," and that one of defendant's friends asked him where the other gun was. Defendant, therefore, alleges that, although his main defense at trial was that he was not the shooter, the jury could have surmised that one of defendant's friends was the shooter and that defendant was only responsible for possibly providing that person with the weapon and persuading that person to shoot the victims.
Defendant's second theory is that the jury could have found him guilty of aggravated manslaughter under the co-conspirator liability rule. See State v. Bridges, 133 N.J. 447, 466-67 (1993) (holding that co-conspirators are vicariously liable for the crimes of their counterparts when those crimes are natural and probably consequences of the conspired-about action). He maintains the jury could have utilized this theory if they "believed that defendant 'hyped up' his armed confederate into agreeing to act in an unspecified violent manner against the victim and that defendant should have 'reasonably foreseen' that a 'natural consequence' of such a plan was that the armed man might at least recklessly kill."
Neither theory, however, is supported by the trial record. Aggravated manslaughter occurs when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4(1). It is, at best, a stretch to find that Yari's testimony discussing defendant getting his crew "hyped up" would allow a jury to conclude that defendant gave one of his friends a gun and encouraged him to shoot the victim. The theory requires a leap of the imagination and has no evidential support in the trial record. The facts of this case do not even slightly resemble those in Morales. There, the defendant handed a loaded gun to an angry associate and encouraged him to shoot the victim, Morales, supra, 111 N.J. Super. at 525-27. There is no evidence in this case of such an event.
There is even less evidence to support defendant's second co-conspirator theory. There is no evidence of any conspiracy, no indication of a co-conspirator or proof of any conversation between defendant and another. In short, the trial evidence does not clearly indicate that the shooting of Perez and Maldonado satisfied the aggravated manslaughter standard. Certainly, the facts that would have supported such a charge do not leap off the page.
Defendant is serving a life term in prison subject to a NERA parole ineligibility term of 63.75 years without parole for murder. For purposes of calculating the NERA parole ineligibility term for a life term, a sentencing judge utilizes seventy-five years as the base term. N.J.S.A. 2C:43-7.2. Following completion of this term, defendant will commence a ten-year term subject to a five-year period of parole ineligibility on the certain persons charge. Therefore, defendant is serving an aggregate term of life plus ten years, 68.75 years of which will be served without parole. Defendant argues that a judge imposing a life term in prison must provide a more expansive statement of reasons than done here. Further, he asserts the judge provided no reasons for imposing a consecutive term on Count 7, and the base term analysis includes impermissible double-counting of at least one aggravating factor.
The judge provided the following statement prior to imposition of sentence:
Before me this morning stands Luis Ramos, a 22-year old individual who, as was indicated by counsel, was found guilty as a result of a jury trial of the following offenses, murder, a crime of the first degree, attempted -- he was found not guilty of attempted murder. He was found guilty of aggravated assault upon Jose Maldonado, a crime of the second degree; and aggravated assault upon Jose Maldonado, a crime of the third degree; possession of a weapon for an unlawful purpose, a crime of the second degree; possession of a handgun without a permit for obtaining such a gun, a crime of the third degree; and as a certain person not entitled to be in possession of a weapon, a crime of the second degree.
I have reviewed the pre-sentence report. And, obviously, I'm intimately aware of the facts in this matter. In reviewing the pre-sentence report I've determined that the following aggravating factors are applicable. That aggravating factor number one, the nature and circumstances of the offense and the role of the actor therein. I find that factor applicable with reference to the assaultive conduct, not so much as to the homicide because of the factors of double counting. The homicide itself certainly speaks to the circumstances of the offense.
I do find that aggravating factor number three, the risk that the defendant will commit another crime, is highly applicable in this matter. I couldn't help but note that when Mr. Ramos turned 18, shortly after he turned 18, he had a simple assault conviction. Assaultive conduct really strikes to the heart of society in keeping a civil place to live. Unfortunately, Camden has a reputation, and the reputation comes from actions of individuals such as Mr. Ramos.
I find that aggravating factor number six, the extent of his prior criminal record and the seriousness of the offenses is also applicable. This young man has -- this is his third conviction, indictable conviction. He is a certain person not to have a weapon. This is an individual who, and perhaps Mr. Kramer is correct, that in some time in the future someone could come back and say to him what was this young fool doing? But he has responsibilities. He has to look in the mirror. He has to control his own life. And clearly he did not control his own life in the actions that he demonstrated on the streets of this city.
And I find that aggravating factor number nine, a need for deterrents of this defendant and others from violating the law, is also acutely applicable in this particular matter.
I find that there are no mitigating factors. Clearly the aggravating factors substantially outweigh the mitigating factors in the fact that there are no mitigating factors.
I considered the nature and the degree of the crimes, and the need for punishment and deterrents, the defendant's prospects for rehabilitation, the pre-sentence report, the defendant's prior involvement in the criminal justice system, as I've indicated, the recommendations of the prosecutor in this matter.
This court must give deference to a trial judge's sentencing decision and may not substitute its judgment for that of the trial court even if it would have arrived at a different result. State v. Cassady, 198 N.J. 165, 180-81 (2009). A court may only modify a sentence if the trial judge's determination is "'clearly mistaken.'" State v. Evers, 175 N.J. 355, 386 (2003) (quoting State v. Jabbour, 118 N.J. 1, 6 (1990)). In making this determination, the trial judge must consider whether: (1) the judge followed the sentencing guidelines; (2) the judge based the aggravating and mitigating factors upon competent and credible evidence in the record; and (3) whether, in applying the guidelines to the facts of the case, the judge made such a "clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). Furthermore, when a judge imposes a consecutive term without providing the expected analysis, we need not remand if the reason for doing so is readily apparent. State v. Bieniek, 200 N.J. 601, 608-09 (2010).
The judge's statement at sentencing is not lengthy. However, the judge who imposed this sentence presided at the trial concerning the death of one young man and the serious injury of another for which the evidence at trial revealed no apparent motive. A senseless death and a senseless maiming do not require an oration.
On the other hand, when imposing a consecutive term of imprisonment, a judge must consider the factors outlined in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). That was not done here. The judge referred to those factors in his discussion of Count 3 but not in his discussion of Count 7. It is not so readily apparent to us why a consecutive term was imposed on this count. Possession of a weapon by a convicted felon is a serious offense. It is understandable that the judge would desire to fashion a sentence that would hopefully deter defendant from arming himself in the future. On the other hand, defendant is serving a life term with a 63.75 year parole ineligibility term for the murder. He was twenty-two at the time he was sentenced. His opportunities for future criminal activity on the streets of Camden are virtually non-existent. Of course, the judge may have also hoped to impose a sentence that would deter others of similar status from arming themselves. This is a legitimate consideration for imposition of a sentence, but those reasons must be cited.
We, therefore, remand to allow the judge to state the reasons for the consecutive term for Count 7. At that time, the judge may also expressly identify the aggravating factors that support the base term and address whether the term is supportable with the elimination of aggravating factor six. This factor, the extent of defendant's prior record, is an impermissible "double-count" because defendant's prior adult record, while present, is scant and a prior adult criminal record is an element of the certain persons charge. State v. Kromphold, 162 N.J. 345, 353 (2000).
The conviction is affirmed; the matter is remanded for reconsideration of the sentence on Count 7 in accordance with this opinion. We do not retain jurisdiction.