On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-0485.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2011
Before Judges Reisner, Sabatino and Alvarez.
Tried to a jury, defendant Juan Castillo was convicted of murder, N.J.S.A. 2C:11-3(a)(1), unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).
On November 21, 2008, the trial court sentenced defendant on the murder charge to forty-five years imprisonment, subject to eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). It then merged the charge of unlawful possession of a weapon with that of possession of a weapon for an unlawful purpose and imposed a concurrent three-year term on that offense, as well as appropriate fines and penalties. He appeals and we affirm, except that we remand so the trial court can merge the remaining weapons offense with the murder conviction.
We summarize the facts developed during the pretrial proceedings and trial. On the evening of August 24, 2005, defendant, accompanied by his father and his step-brother, spent some time at the El Quijote bar in Elizabeth. Eventually, defendant and the step-brother walked his father home, returning to the bar in the company of Carvin Osmani Flores and, later on, Cesar Dominguez. All of the men, who are Salvadoran, were drinking beer and playing pool.
Defendant and Manuel C. Rodriguez, the murder victim, got into a heated argument shortly before closing time. Defendant's friends and three bar employees, Guadalupe Valdez, Alexandra Aguado, and Elida Fernandez, witnessed the argument. No one knew what caused the conflict.
Valdez and Aguado saw Rodriguez, who was Mexican, make a signal customary to a Mexican gang to defendant, who responded with a hand sign used by the Salvadoran MS-13 gang. Defendant then pulled up his shirt, revealing an MS-13 tattoo on his stomach, and yelled out the gang's full name.
Valdez, who is also Salvadoran, testified that when these signs are used by MS-13 members, "that means death . . . [and] [t]here is going to be trouble." Flores explained the hand signal meant defendant "was mad. That he wanted to fight."
Defendant and his friends left and headed towards their car while Rodriguez and his friends stood outside as the bar was closing. Accounts vary but, in essence, a melee broke out between the two groups of men.
Valdez and Aguado, standing across the street, described seeing defendant fighting with the victim and hitting him in the chest. Flores initially told police that Rodriguez was on top of defendant, although he later said it was defendant on top of Rodriguez, punching him in the ribs.
Two other bar patrons, Firlander Quijada and Walter Garcia, attempted to come to the victim's aid when they saw him being beaten and heard him crying out for help. Quijada saw defendant holding the victim from behind, stabbing him repeatedly in the chest. Quijada went to his truck, parked nearby, and grabbed a sledgehammer. When he returned to the scene, he and Garcia cursed at defendant and urged him to calm down. Defendant then began to swing the knife at Garcia, cutting him in his left upper arm in the process. While attempting to intervene between Flores and one of the Mexicans, who was wielding a bottle, Dominguez saw defendant waving a knife in Garcia's direction.
Upon hearing police sirens, Flores, Dominguez, and defendant fled the scene, headed in different directions. Officers found the victim bleeding and unresponsive while a highly agitated Garcia was complaining that the victim, not defendant, had swung a knife at him. He also claimed a group of Puerto Ricans had tried to rob him. No knife was found on the victim or in his immediate vicinity, and the murder weapon was never located. Rodriguez died of multiple three-inch deep stab wounds to the chest shortly after his arrival at the hospital.
Meanwhile, defendant tracked down his friends. His shirt was blood-stained and he said he believed he had stabbed someone. Two days later, when Dominguez told defendant someone had died during the fight, he became quiet and withdrawn. During a police interview months later, however, defendant expressed surprise upon learning someone had been killed in the fracas.
Months after the stabbing, police discovered defendant's identity
after another bar employee had a chance encounter with him. When
subsequently interviewed by Detectives Steven Owsiany and Ismael
Olivero at the police station, defendant signed a Miranda*fn1
waiver and gave a statement. He did not admit to being
present at El Quijote until the officers claimed they had a video
depicting defendant and his father drinking at the bar.
At first, defendant asserted the fight started when one of the victim's friends came after him with a machete, and that he had wielded a big chain and a knife in his defense. Asked whether he "cut" Rodriguez, defendant responded "I think I did." This exchange followed:
Olivero: You think you did? [Defendant]: Yeah . . . um-hum. I think I did.
Olivero: You think or you know you did. [Defendant]: I think I did. I ...