On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-07-1630.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and Skillman.
Defendant was indicted together with co-defendants Robin Perez and Anita Pratts for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1) and (2); conspiracy to commit homicide and/or aggravated assault, in violation of N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3(a) and/or N.J.S.A. 2C:12-1(b)(1); third degree hindering apprehension, in violation of N.J.S.A. 2C:29-3(b)(1); and two counts of fourth degree tampering with physical evidence, in violation of N.J.S.A. 2C:28-6(1); and various other offenses. Defendant was tried separately from the co-defendants, who pled guilty pursuant to plea bargains discussed later in this opinion. A jury found defendant guilty of all charges. The trial court sentenced defendant to a fifty-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for murder; a concurrent three-year term for hindering apprehension; and concurrent one-year terms for the two counts of tampering with physical evidence. The court merged defendant's other convictions, including the conviction for conspiracy.
Roberto Feliciano, the victim, was a professional boxer who trained younger athletes and resided in Atlantic City with his wife, co-defendant Anita Pratts, and her three children, two daughters and a son. At the time of the murder, Pratt's older daughter was dating Jean Carlos Salazar, and her younger daughter was dating John McKoly Palomo-Oterio.
Defendant resided with Palomo-Oterio, who was his second cousin and friend. Co-defendant Perez was also friendly with Palomo-Oterio. However, according to the State's evidence, Perez disliked Feliciano and, after Pratts told him that Feliciano had raped her younger daughter, Perez became angry and stated that "he wanted to hurt" Feliciano.
On May 9, 2006, Pratts let Perez and defendant into the house that she resided in with Feliciano before she went to work. Perez and defendant hid inside the house in a bedroom until Feliciano returned home after driving Pratts to work. After Feliciano entered the residence, Perez and defendant had a violent confrontation with him. During that confrontation, defendant struck Feliciano several times on the head and body with a pipe and Perez inflicted forty-four stab wounds with a knife, which caused Feliciano's death.
Although the defense did not dispute that Perez and defendant were the participants in the violent confrontation that resulted in Feliciano's death, there was conflicting evidence concerning their purpose in going to Feliciano's residence on the day of the murder.
The State presented testimony by Palomo-Oterio and Salazar that there had been a discussion in Palomo-Oterio's bedroom the night before the murder in which Perez stated in the presence of defendant and Pratts that he was going to kill Feliciano, and that defendant had been with Perez when he left Palomo-Oterio's house early the next morning to go to Feliciano's house.
According to Palomo-Oterio, Perez said during the discussion in his bedroom that he was going to kill Feliciano by "stabbing him" and brandished the knife he was going to use for this purpose. After this conversation, Palomo-Oterio saw Perez and defendant leave his house together around 4 a.m. The following morning, defendant called him on the telephone and said, "they killed him." Defendant also asked Palomo-Oterio to bring a change of clothing for him to Bally's, where Pratts worked, which Palomo-Oterio did.
Salazar, who was also in Palomo-Oterio's bedroom the night before the murder, corroborated Palomo-Oterio's testimony that Perez said he was going to kill Feliciano and that defendant was present when this was discussed. According to Salazar, Perez asked him during this discussion to help kill Feliciano, but he refused.
The State's proofs also included a lengthy videotaped statement defendant gave to the police the day after the murder, which was played for the jury, in which defendant admitted his involvement in the murder.
The defense version of the killing, which was presented primarily through the testimony of Perez and defendant, was that Perez's purpose in going to Feliciano's home was not to kill or inflict serious bodily injury upon him but instead to assault him, and defendant only accompanied Perez to talk him out of inflicting any harm upon Feliciano.
Perez testified that he asked defendant to accompany him to Feliciano's house to pick up her daughter's personal belongings, who had recently moved out of the house. However, after they arrived at the house, Perez told him that his real purpose in going to Feliciano's house was "to scare him." According to Perez, when Feliciano returned to the house after driving Pratts to work, he and defendant remained in a back bedroom while Feliciano made coffee and talked on a cell phone. Feliciano then walked into the bedroom and, upon seeing the two men, lifted his coffee cup to attack them. In reaction, defendant hit Feliciano with a pipe that Perez had picked up on the way to the house. Feliciano ran to the front door and grabbed the handle, but then turned around "willing to fight." Perez saw Feliciano reach for a knife on the wall next to him, and defendant again hit him with the pipe. Feliciano attempted to pick up a rocking chair and throw it at Perez, but Perez held the chair down. Perez testified that he then blacked out, but remembers stabbing the victim multiple times and finally stopping when he realized what he was doing.
Although Perez testified on direct examination that defendant was only an acquaintance, he admitted on cross-examination that defendant had been with him when he purchased the knife used in the murder. In addition, although Perez claimed on direct examination that he had not seen defendant hit Feliciano on the head with the pipe, he admitted on cross-examination that defendant had hit Feliciano on the head multiple times, including after Feliciano had already been stabbed and was lying helpless on the ground.
Defendant testified that when Perez was swinging the knife in Palomo-Oterio's bedroom the night before the murder and talking about hurting or killing Feliciano, he told him, "don't do it." He also testified that when Perez awoke him early the next morning, he thought they were going to Perez's house, but Perez later told him they were actually going to Feliciano's house. According to defendant, he objected, saying "[d]on't go there . . . . Let the police do their business. . . . It's not your job to do that."
When they arrived at Feliciano's house, defendant testified that Pratts told Perez not to do anything, that she was trying to inform the police about Feliciano's alleged rape of one of her daughters. According to defendant, after they received the call from Pratts that Feliciano was on his way back to the house, he tried to persuade Perez to leave the house and told him he did not want to be there. Defendant testified that when Feliciano returned home, he got scared. Defendant said that when Feliciano ran to the front door, he followed, hoping he could also get out of the house. However, when Feliciano did not leave and instead reached for a knife on the wall, defendant hit him on the hand and head with the pipe. Feliciano then began fighting and kicked defendant in the stomach, prompting defendant to hit ...