June 28, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JUAN CASTILLO, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 still think about it.
Olivero: [Let's] understand something, you cut him.
Owsiany: (Laughing) [Defendant]: I guess I did.
Defendant was equally equivocal about stabbing Garcia, admitting he had swung at him with the knife, but claiming he did not "remember" or "know" whether he made contact.
When the conversation shifted to the murder weapon, defendant said he had a "folding knife" that night, but maintained he did not know where it could be found. After the incident, he said he just "ran [and] got into the car." He could not remember how many times he stabbed Rodriguez, but acknowledged continuing the attack after the victim had already fallen to the ground. Defendant was certain one of the Mexican men -- not the victim -- had a machete because they "[s]tabbed one of my guys." Nothing in the record indicates a member of the Salvadoran group suffered any injuries. When officers asked defendant to explain the reason he stabbed a man who had no weapon, defendant replied "I don't know. I guess [I] was just internally drunk."
Defendant's story contradicted Dominguez's account of a spontaneous fight. According to defendant, after he and his friends got into their car, there was a "discussion about waiting for the Mexicans." Defendant argued they should "just wait" because "[the Mexicans] aren't going to get away with that, you know. [Dominguez, Flores, and Rodriguez] was like yeah, f-ck it." He also contradicted everyone's account of the number of persons who jumped out of Quijada's vehicle and their purpose. Contrary to Quijada's statement that he and Garcia were acting as good Samaritans, defendant recalled that there were four people who jumped in and took "the Mexicans' side," one of whom wielded a machete.
Defendant claimed he was "really drunk, really, really drunk" and "was still thinking about it the next day if [he] was just imagining [it] or did it really happen." Nonetheless, he insisted he only stabbed Rodriguez in the stomach, not on the back of the arm and the chest, as determined during the autopsy.
Owsiany testified at the Miranda hearing that defendant was neither under arrest nor handcuffed when he was interviewed. Owsiany and Olivero both asserted defendant understood English sufficiently to comprehend the waiver form and that they discussed each individual section with him. Defendant, who has a ninth-grade education, said on tape that he was not forced, coerced, or threatened into speaking with police. He did not appear to be intoxicated. Hence the court concluded defendant executed a "voluntary[,] intelligent waiver and [that] there were no threats, coercion, or in [any] way was this anything other than a voluntary statement."
The trial court also conducted a preliminary hearing as to the admissibility of defendant's assault upon Garcia. The State proposed having Dominguez testify that when he arrived at the fight, he saw defendant swinging a knife in Garcia's direction. The State advanced the theory that this evidence established defendant's possession of a weapon and countered the defenses of intoxication and self-defense, and contended it was admissible as either res gestae or other bad acts evidence pursuant to N.J.R.E. 404(b).
Defendant strenuously objected on the basis that the State had not charged him with assaulting Garcia. In the absence of such charges, he asserted that continued references to Garcia as a "second victim" were highly prejudicial, particularly in light of Garcia's initial statement that the victim, not defendant, stabbed him. Accordingly, defendant sought the exclusion of "anything about him landing [a blow] on anybody other than Manuel Rodriguez."
The trial court found the fact no formal charge was ever lodged against defendant for Garcia's stabbing irrelevant, and ruled Dominguez's testimony was admissible under both res gestae and N.J.R.E. 404(b). After engaging in the analysis required by State v. Cofield, 127 N.J. 328, 338 (1992), the court concluded the evidence met each prong of the test.
The State also proffered the expert testimony of New York State Police Inspector Hector Alicea. Alicea spent fourteen years as an undercover narcotics officer and six years on a federal gang task force. He is a recognized authority on MS-13, providing training and informative seminars on the organization to law enforcement agencies across the United States and in El Salvador.
In addition to educating the jury on the reasons defendant's tattoos, hand signs, and clothing identified him as a member of MS-13, the State intended to have Alicea testify defendant's behavior was consistent with the gang's code of conduct. Once MS-13 itself was disrespected by the victim's hand gesture, defendant's subsequent actions corresponded to the retaliation expected from a member of the organization.
Defendant challenged only the proposed "code of conduct" testimony. The State countered it was essential to establish motive, and went "directly to the issue[s] of self-defense and . . . intoxication . . . ."
The court qualified Alicea as an expert pursuant to State v. Torres, 183 N.J. 554, 568-72 (2005) (finding expert testimony on the subject of gang activity admissible so long as the witness was adequately qualified), and ruled that, subject to the appropriate foundation, the code of conduct opinion testimony would be permitted. In the trial judge's view, this testimony was similar to the "hierarchy, discipline, and operations of the gang" described in Torres and, further, was probative on defendant's claims of "intoxication and self-defense."
Before the jury, Alicea was presented with a hypothetical situation mirroring the facts of this case. He was asked whether "[g]iven that communication . . . and given the fact that the person involved in this incident left, and then came back, is that  conduct consistent with that of the rules of conduct established by MS-13?" Alicea responded that "in the hypothetical case, the fact that the individual left, and came back, it is obvious that his intent to come back was to retaliate[e], because that is the MS[-13] creed."
When defendant was sentenced, the court found aggravating factor three, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), six, the extent of his prior criminal record and the seriousness of prior offenses, N.J.S.A. 2C:44-1(a)(6), and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), and no mitigating factors. At age twenty-three, defendant had two municipal ordinance convictions, a warrant outstanding for a disorderly conduct downgrade, and a federal conviction for check forgery.
On appeal, defendant raises the following points:
POINT I - THE ABSENCE OF ANY TYPE OF A N.J.R.E. 404(B) LIMITING INSTRUCTION AT THE TIME THE EVIDENCE WAS ADMITTED AND IN THE TRIAL COURT'S JURY CHARGE AT THE END OF THE CASE RESULTED IN PLAIN ERROR (NOT RAISED BELOW)
POINT II - THE DEFENDANT'S INCULPATORY VIDEOTAPED STATEMENT SHOULD HAVE BEEN SUPPRESSED BECAUSE THE "TRICKERY" ADMITTEDLY USED BY DETECTIVE OWSIANY, UNDER A TOTALITY OF THE CIRCUMSTANCES ANALYSIS, WAS AN "UNFAIR MEANS" SINCE IT INVOLVED POLICE-FABRICATED EVIDENCE THAT WAS CALCULATED TO INDUCE A CONFESSION POINT III - INVESTIGATOR ALICEA'S EXPERT CODE OF CONDUCT TESTIMONY THAT THE DEFENDANT'S "INTENT" WAS TO RETALIATE WAS HARMFUL ERROR POINT IV - GUADALUPE VALDEZ'S TESTIMONY THAT THE HAND SIGN MADE BY THE DEFENDANT "MEANS DEATH" WAS IMPROPER AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
POINT V - THE 45 YEAR BASE CUSTODIAL TERM IMPOSED ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE WAS MANIFESTLY EXCESSIVE "'Traditional rules of appellate review require substantial deference to a trial court's evidentiary rulings.'" Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (quoting State v. Morton, 155 N.J. 383, 453 (1998)), certif. denied, 163 N.J. 79 (2000). Absent a manifest denial of justice, this court will not disturb a trial judge's reasoned exercise of his or her broad discretion in making relevance and admissibility determinations. Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied sub nom. Lydon v. Silverman, 196 N.J. 466 (2008). This standard applies to determinations under N.J.R.E. 404(b). See State v. Erazo, 126 N.J. 112, 131 (1991); State v. Ramseur, 106 N.J. 123, 266 (1987).
Where an issue raised on appeal was not brought to the attention of the trial court, it will be considered under the doctrine of plain error. That is, it will be affirmed unless "clearly capable of producing an unjust result." R. 2:10-2. There must be "reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
i. Defendant first contends the trial judge's failure to issue N.J.R.E. 404(b) limiting instructions immediately after the State's presentation that defendant cut Garcia or in the closing charge resulted in plain error. The omission was not brought to the judge's attention. Introduction of N.J.R.E. 404(b) evidence requires the jury be told "'precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.'" State v. Marrero, 148 N.J. 469, 495 (1997) (quoting State v. Stevens, 115 N.J. 289, 304 (1989)). It is undisputed that such instructions must ordinarily be issued, both when the evidence is admitted and during the closing charge to the jury. See State v. Barden, 195 N.J. 375, 390 (2008) (requiring the instruction be given at both times).
Nonetheless, in this case failure to give the instruction was harmless error. The highly probative evidence was incapable of "producing an unjust result." R. 2:10-2. Defendant admitted to the crime after being Mirandized. The bar employees, not connected in any fashion with the fight or the participants, testified they saw defendant stab the victim. Quijada and Garcia, who joined in the fight, also identified defendant as the perpetrator. In this unique situation, failure to give the requisite instruction is harmless error because defendant's conviction was the product of a fair trial during which the State presented overwhelming proof. See State v. Gillespie, ___ N.J. ___, ___ (2011) (slip op. at 43-45). Had the instruction been given, it would not "have tipped the jury's deliberations in favor of a non-guilty verdict." State v. G.S., 145 N.J. 460, 476 (1996) (trial court did not instruct jury that uncharged earlier acts of sexual molestation by defendant upon same victim were relevant to any issue in dispute, although instruction was given that conduct could not be used to establish propensity); see also State v. Loftin, 146 N.J. 295, 394-95 (1996) (failure to charge jury as to limited purpose of other crime evidence was not reversible error where defendant was charged with murder and the other crimes evidence was non-violent and entirely different from charged conduct).
The trial judge also decided the evidence that defendant cut Garcia was admissible under grounds separate from Rule 404(b), the then controversial, now discarded, theory of res gestae. See State v. Zarik Rose, ___ N.J. ___, ___ (2011) (slip op. at 4). The State was unable to produce the knife, and was required, among other things, to place the weapon in defendant's hand in order to prove the charged offense. Since the cutting occurred within seconds of the homicide, the court found it to be an integral part of the incident and therefore admissible.
To reiterate, though without taking into account the now discarded doctrine of res gestae, defendant's grudging admission that he stabbed Rodriguez, the multiple eyewitnesses who saw him attacking the victim, and the comparatively minor attack upon Garcia establish that the court's failure to give limiting instructions did not result in manifest injustice. Defendant, who objected to the admission of the evidence solely on the basis that it was uncharged conduct, has not demonstrated prejudicial plain error resulting from its admission. It is not convincing to suggest the assault upon Garcia led the jury "to a result it otherwise might not have reached" on the murder of Rodriguez. Macon, supra, 57 N.J. at 336. "Convictions after a fair trial, based on strong evidence proving guilt beyond a reasonable doubt, should not be reversed because of a technical or evidentiary error that cannot have truly prejudiced the defendant or affected the end result." State v. W.B., ___ N.J. ___, ___ (2011) (slip op. at 27-28).
ii. Defendant also challenges the admission of his videotaped statement to police on the ground that Owsiany's reference to a non-existent surveillance video placing him at the scene constituted a material misrepresentation that improperly led him to make further disclosures. We reject this contention.
First and foremost, Owsiany's statement came approximately midway through the interview, long after defendant executed a knowing and voluntary Miranda waiver. See State v. Timmendequas, 161 N.J. 515, 613 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001) (stating "[c]onfessions obtained by police during custodial interrogation are barred from evidence unless the defendant has been advised of his constitutional rights"); State v. Cabrera, 387 N.J. Super. 81, 99 (App. Div. 2006) (observing that, for statements made to police during a custodial interrogation to be admissible, "the State must prove beyond a reasonable doubt that the defendant waived his right against self-incrimination, or Miranda rights, and that his decision to do so was knowing, intelligent, and voluntary in light of all the circumstances") (citing State v. Knight, 183 N.J. 449, 461-63 (2005)).
Defendant was well aware of his ability to bring the discussion to a halt, or to request counsel before proceeding any further with the interview.
Second, Detective Owsiany's one misrepresentation in the course of an approximately ninety-minute interview does not rise to the level of "coercion or 'official misconduct'" proscribed by the Constitution. Cabrera, supra, 387 N.J. Super. at 99 (quoting Jackson v. Denno, 378 U.S. 368, 376-77, 84 S. Ct. 1774, 1780-81, 12 L. Ed. 2d 908, 915-16 (1964)). "Unlike the use of physical coercion, . . . use of a psychologically-oriented technique during questioning is not inherently coercive. . . . Cases holding that police conduct had overborne the will of the defendant have typically required a showing of very substantial psychological pressure on the defendant." State v. Galloway, 133 N.J. 631, 654-55 (1993).
Defendant was free to believe or disbelieve Owsiany's statement. In fact, defendant initially challenged Owsiany to produce the video if it existed, lending further credence to the conclusion that his subsequent statements were voluntary. The deceit practiced by the officers is not a bar to the admission of his statement.
iii. Defendant asserts Alicea testified his "intent" in coming back to El Quijote "was to retaliate because that is the MS creed." He argues this amounted to an "expert conclusion that the defendant was guilty" and that Alicea effectively "announced his own verdict." The record does not support the characterization:
[PROSECUTOR]: In the particular scenario I gave you in the hypothetical that I presented to you, . . . the hand sign, the flashing of the tattoo, and also yelling [MS-13], do you have an opinion as to the meaning of that particular mode of communication?
[ALICEA]: It's just reiterating that you have disrespected my gang. This will not go unpunished. I'm angry. I'm letting you know I'm angry by continuing to yell MS-13, show[ing] you that I have tattoos, and the fact that I'm showing handsigns. [PROSECUTOR]: Given that communication, given the scenario I've given you, and given the fact that the person involved in this incident left, and then came back is that -- is that consistent with that of the rules of conduct established by MS-13?
[ALICEA]: That is in line with the conduct, as I mentioned before, that retaliation sometimes is swift, sometimes is not. And in the hypothetical case, the fact that the individual left, and came back, it is obvious that his intent to come back was to retaliat[e], because that is the MS[-13] creed. (emphasis added).
Alicea responded to a question framed in the hypothetical by explaining that an MS-13 member's intention in seeking out an individual who disrespected the gang was likely to include retaliation. In his own statement, defendant said he planned to return to the bar in order to fight. No additional harm came to defendant because of this testimony, and it did not interfere with the jury's factfinding function.
Moreover, Alicea was more experienced than the expert in Torres. Torres, supra, 183 N.J. at 562 (expert possessed only four years in a State Police gang unit and had interviewed only ten to fifteen MS-13 members). That expert was permitted to testify as to the gang's code of conduct with respect to internal discipline and punishment. Id. at 562-63. The inclusion of testimony with respect to external discipline and punishment does not alter the calculus of admission. This expert's testimony did not impermissibly interfere with the jury's obligation to determine defendant's guilt.
iv. For the first time on appeal, defendant objects to Valdez's testimony that when MS-13 members "make signs with their hands" it means "death" and that there "is going to be trouble." The answer came in response to questioning regarding her experience over thirty years living in El Salvador. Defendant also objects to the prosecutor's reference to that testimony in his closing statement:
Guadalupe Valdez says that when you're in her country and you see th[ese gestures] -- does she know exactly what it means? No.
But what did she tell you? . . . . Can she define what each and every one of the [twenty-seven] photographs that she was shown on the different MS-13 hand signs mean? No, she can't. She says I recognize the one hand sign though and I know it means death.
As only one comment in the course of a nine-day trial, it is unlikely Valdez's statement was sufficient, alone, to lead the jury to convict defendant. R. 2:10-2. This is particularly true in light of defendant's own statement to police and the testimony of Quijada, Garcia, and Dominguez, who all said they witnessed defendant wielding a knife on the night of the murder.
Furthermore, defense counsel cross-examined Valdez regarding her testimony, eliciting the fact that her knowledge was limited to events occurring in El Salvador, that she knew no gang members -- MS-13 or otherwise -- in New Jersey, that she was unfamiliar with gang behavior in this country, and that she had not seen a single MS-13 fight since arriving here. The inclusion of her testimony and the prosecutor's reference to it was not prejudicial or error, much less plain error.
v. We review sentencing decisions not to substitute our judgment for that of the trial court, but only to assess whether the aggravating and mitigating factors found by the trial court are supported by the evidence. State v. Bieniek, 200 N.J. 601, 607-09 (2010). When a trial court's findings of aggravating and mitigating factors are supported by the record, where the sentencing overall complies with the criminal code, and if the individual's sentence does not shock our conscience, a sentence will be upheld. Ibid.
Defendant's forty-five-year sentence was not manifestly excessive in light of the sentencing range. The court, in the context of the mandatory sentence of a minimum of thirty years parole ineligibility for the crime of murder, certainly did not exceed the permissible range allowed by N.J.S.A. 2C:11-3(b)(1). The court properly weighed the three aggravating factors in light of defendant's criminal history and conduct in this case, in the absence of mitigating factors, to reach the term of forty-five years. This death resulted from a virtually random encounter.
Nonetheless, the jury in this case was instructed that the only unlawful purpose they could consider as to defendant's possession of the knife was Rodriguez's stabbing. Under these circumstances, possession of a weapon for an unlawful purpose must be merged with the murder conviction. See State v. Diaz, 144 N.J. 628, 641 (1996) (possession of a weapon for an unlawful purpose merges with substantive offense where defendant's only objective in possessing the weapon was completion of the substantive offense). The matter must therefore be remanded for the purpose of merging the remaining weapons offense with the murder count.
Affirmed, except that we remand for the purposes of merger.