On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-01-0009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Sabatino and J. N. Harris.
Defendant Rafael Ortiz appeals his conviction for felony murder, first-degree robbery, and second-degree conspiracy to commit robbery, stemming from a jury verdict following a 2007 trial. Because the trial court's charge to the jurors was flawed by multiple and lengthy omissions of critical instructions on accomplice liability required under State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993) and State v. Ingram, 196 N.J. 23, 40-41 (2008), we vacate defendant's convictions and remand for a new trial.
The indictment of defendant arose out of a fatal attack by several persons upon Isidro Villa Avila, after Avila had walked out of a bar in Passaic early on the morning of September 11, 2004. The State's proofs at trial adduced the following pertinent facts.
At about 10:00 p.m. on September 10, 2004, Samuel Tufino and Harlon Morales, two of the alleged perpetrators who were involved with defendant in the crimes at issue, met at the El Pisano bar on High Street in Passaic. Tufino, Morales, and another acquaintance of theirs, Oscar Nieves, began drinking in the bar. Also present and having drinks were three other men that Tufino could not identify by name.*fn1
One of the unidentified men drinking in the bar--"the Dominican"--told the rest of the group that he knew of another bar patron who was in possession of a large sum of money. The group then decided to rob the bar patron. Tufino testified that defendant was part of the group that made that decision. At some point thereafter, the entire group, including defendant, allegedly left the bar and went to a residence at 99 Gregory Avenue in Passaic.
Meanwhile, four other men who also eventually became involved in the criminal acts--Ariel Mercado, Daniel Manuel, Eduardo Velloy, and Freddy Placensia--went to see a movie in Clifton. At midnight, after the movie ended, those four men boarded a bus to Passaic and went to the El Pisano bar. They arrived sometime between 12:30 and 1:00 a.m. on September 11, 2004. As Mercado was entering the bar, he saw defendant walking from Main Avenue. Defendant told Mercado that he had just left a local fast-food restaurant.
Mercado and Manuel went inside the bar to purchase cigarettes. They saw Nieves, Morales, and another man playing pool. Mercado and Manuel then left the bar and walked to 99 Gregory Avenue to drink and gamble. Manuel reportedly called his friend Ashish Patel to join them there.
Patel testified that when he arrived at 99 Gregory Avenue, shortly before 1:00 a.m., he saw defendant, accompanied by Mercado, Manuel, Nieves, Morales, Velloy, Placensia, and another man, Juan Toribio.*fn2 According to Patel, Nieves and Toribio were discussing the intended robbery of the bar patron. Nieves told Toribio to return to the bar and "keep an eye" on the intended victim. He paid Toribio $10 to do so.
Patel, Manuel, and "a few people" then all went to the bar several minutes later to purchase cigarettes and cigars. Once they returned to 99 Gregory Avenue, Nieves instructed Patel to retrieve Toribio from the bar.
Patel then found Toribio, who appeared to be too drunk to stand, outside the bar. Patel asked Toribio if he was still watching the intended target of the robbery. Toribio responded that he had stopped doing so because he was too drunk to be allowed to remain in the bar.
Patel and Toribio returned to 99 Gregory Avenue and joined Nieves, Morales, Mercado, Manuel, and defendant there. By this point Velloy and Plascensia had already left for Velloy's home.
According to the State's proofs, the men gathered at 99 Gregory Avenue reached a general agreement to split the proceeds of the intended robbery. However, Toribio objected to the plan, causing Patel and Nieves to get irritated and assault him.
At this point in the sequence of events, the testimony diverged somewhat. According to Patel, he, Morales, and Mercado walked Toribio to the back of the driveway at 99 Gregory Avenue. Meanwhile, Nieves, Manuel, and defendant went back down to High Street to locate the robbery target, who had reportedly been seen vomiting outside the bar. Manuel then returned shortly thereafter to 99 Gregory Avenue, where Patel was apologizing to Toribio for the assault. Patel then encountered Nieves, who "looked like he [had] changed his clothes" and had "freshened up a little bit." Nieves told the assembled men at 99 Gregory Avenue that "somebody had [just] got[ten] killed down the street . . . around the corner of High Street."
Mercado's account was similar to that of Patel, but slightly different. He testified that after the confrontation between Patel and Toribio had erupted, defendant, Nieves, Morales, Patel, and another person all headed towards the bar. However, according to Mercado, Manuel remained behind with him and Toribio. Patel and Morales returned immediately. Mercado subsequently learned that someone had been killed "around the corner."
Unlike Patel and Mercado, Tufino offered in his testimony some first-hand observations of the attack upon the victim. Tufino stated that he went back to the bar with defendant, Nieves, and "the Dominican," i.e. Toribio. According to Tufino, consistent with the plan of attack, Toribio lured the intended robbery victim out of the bar by offering him some marijuana. At this point, Tufino saw defendant, Nieves, and Toribio walk across High Street, and observed them struggle with the victim. The threesome then ran from the scene while the victim, covered with blood, staggered about.
At 1:15 a.m. on September 11, 2004, the local police received a call that there was a "downed party" at 19 High Street in Passaic. Responding to the scene, the investigating officers discovered a trail of blood that began at 11 High Street and ended at the lifeless body of Avila. The officers noticed that Avila had been stabbed three times in the chest.
A search of Avila's body and clothing turned up a pay stub for $468.41, dated the previous day, September 10, 2004. Additionally, Avila was found to be in possession of $84 in cash, a cell phone, and some personal items. The police then canvassed the area. They learned that Avila had lived nearby, at 79 Gregory Avenue.
As a result of their initial investigation, the police identified defendant and several other men as potential witnesses and/or suspects. Police officers consequently interviewed defendant on September 12, the day after the killing. During that initial interview, he identified Toribio and Nieves as the perpetrators, but denied any wrongdoing himself.
After speaking with several other persons, the police decided to re-interview defendant on September 15, 2004. This second interview was videotaped.*fn3 In the second interview, defendant provided more detail. He told the police that Toribio had attempted to recruit him into a plot to rob the bar patron, but that he had refused. Defendant further stated that he had seen Toribio, before the attack, in possession of a "black, metal, [and] pointy" knife.
After taking defendant's second statement, the police located and questioned Tufino, who, among other things, inculpated defendant. Following that interview, the police obtained an arrest warrant for defendant, charging him with conspiracy to commit robbery, homicide, and various weapons offenses. After defendant was arrested, on September 16, 2004, he initiated contact with the same detective who had taken his earlier statements and gave a third--this time oral--statement. In his third statement, defendant claimed that he saw Toribio stab Avila while Nieves held him down. Defendant did not indicate in that third statement that he assisted in either the conspiracy or the robbery.
Defendant was subsequently indicted by a grand jury, along with seven*fn4 co-defendants, for various crimes arising out of the attack upon Avila and his ensuing death. Specifically, defendant was charged with felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, -4a; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree possession of a weapon, N.J.S.A. 2C:39-5d. The State did not contend that defendant himself had actually killed Avila, but instead had criminally participated in the plan to rob the victim and in the robbery itself.
Defendant's case was apparently severed*fn5 from the other co-defendants, and was tried before a jury over eight days in April and May 2007. As part of its proofs, the State called Detective Sergeant Roy Bordamonte, the lead investigator on the case. The State also presented expert testimony from the medical examiner, Albert Wayne Williams, M.D., who delineated the nature and likely source of Avila's wounds. Additionally, the State called several of the alleged co-conspirators--Mercado, Tufino, and Patel--each of whom testified pursuant to a plea agreement. The State also presented the video of defendant's second police interview.
The defense's essential position at trial was that defendant had been a mere bystander to the events in question, and that he had not agreed to take part, nor participated, in a criminal plan to rob or hurt the victim. His counsel stressed that there was no scientific evidence, such as bloodstains or DNA, linking defendant to the victim. In addition, the footprints found around Avila's body did not match those of defendant. Moreover, defendant was not found in possession of a knife, and the knife used in the stabbings was not recovered.
Defendant did not testify at trial. His sole trial witness was Detective Eduardo DeHais of the Passaic Police Department, who had conducted the initial interrogation of Tufino. DeHais testified that Tufino had said nothing in his initial interview about spending substantial time with others at 99 Gregory Avenue on the night of the stabbing. The defense offered this proof in an effort to impeach Tufino's differing account at trial.
Following the charge conference, both counsel delivered their respective summations. The trial judge then instructed the jury on the applicable law. Defense counsel did not object to the charge as it was stated in open court.
The jury returned a verdict convicting defendant of first-degree robbery, felony murder, and second-degree conspiracy to commit robbery. The jury acquitted defendant of the two weapons charges.
Five months later, the judge sentenced defendant. After merging the conspiracy and robbery counts into the felony murder count, the judge imposed a forty-year sentence, subject to an eighty-five percent parole ineligibility period under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2a. In his sentencing analysis, the judge found that aggravating factors three (the risk of re-offense), N.J.S.A. 2C:44-1a(3); six (defendant's prior record and the serious nature of the present offense), N.J.S.A. 2C:44-1a(6) and nine (the need for deterrence), N.J.S.A. 2C:44-1a(9), applied, and that no mitigating factors under N.J.S.A. 2C:44-1b pertained. Among other things, the judge specifically noted that defendant had been on probation at the time of the instant ...