On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 04-03-0318.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011
Before Judges Payne, Simonelli and Hayden.
Defendant, Porfirio Jimenez, appeals his conviction by a jury for the
crimes of murder, N.J.S.A. 2C:11-3(a)(1) and
(a)(2), felony murder while engaged in the crime of kidnapping,
N.J.S.A. 2C:22-3(a)(3), first-degree kidnapping, N.J.S.A.
1(b), felony murder while engaged in the crime of attempted sexual
assault, N.J.S.A. 2C:11-3(a)(3), second-degree attempted aggravated
sexual assault on a victim of less than thirteen years of age,
N.J.S.A. 2C:5-1 and 2C:14-2(a)(1), and third-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The matter was
commenced as a capital prosecution. However, the death penalty was
legislatively abolished before
the matter was tried.*fn1
As a consequence, defendant was sentenced to life without
parole for the murder, to a consecutive term of twenty-five years for
the kidnapping with an eighty-five percent parole disqualifier
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and
to a concurrent term of seven years with an eighty-five percent parole
disqualifier pursuant to NERA for attempted aggravated sexual assault.
The remaining convictions were merged and dismissed.
On appeal, defendant makes the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO A SEARCH WARRANT AS WELL AS THE DEFENDANT'S ENSUING STATEMENT TO THE POLICE.
B. THE AFFIDAVIT FILED IN SUPPORT OF THE SEARCH WARRANT APPLICATION LACKED SUFFICIENT PROBABLE CAUSE TO JUSTIFY THE ISSUANCE OF A SEARCH WARRANT FOR THE DEFENDANT AND THE TAKING OF EXEMPLARS FROM HIM.
C. THE DEFENSE WAS ENTITLED TO AN EVIDENTIARY HEARING PURSUANT TO FRANKS v. DELAWARE, 438 U.S. 154, 98 S. Ct. 2674 (1978) SINCE A REQUISITE SHOWING EXISTED THAT THE POLICE OMITTED NUMEROUS MATERIAL FACTS FROM THE SUPPORTING AFFIDAVIT WHICH, HAD THEY BEEN INCLUDED, WOULD HAVE PRECLUDED THE ISSUANCE OF A SEARCH WARRANT.
D. NEITHER THE INEVITABLE DISCOVERY DOCTRINE NOR THE INDEPENDENT SOURCE DOCTRINE APPLIED TO PRECLUDE AN APPLICATION OF THE EXCLUSIONARY RULE.
E. THE DEFENDANT'S STATEMENT TO THE POLICE ON JUNE 7, 200 MUST BE SUPPRESSED AS CONSTITUTING A FRUIT OF THE POISONOUS TREE ARISING OUT OF THE IMPROPERLY ISSUED SEARCH WARRANT AND ENSUING ILLEGAL ARREST OF THE DEFENDANT.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE DEFENDANT'S STATEMENTS TO THE POLICE ON JUNE 7, 2001 WHICH WERE INCRIMINATING IN NATURE.
B. SINCE LAW ENFORCEMENT FAILED TO ADVISE THE DEFENDANT AN ARREST WARRANT HAD BEEN ISSUED FOR HIM RELATING TO THE VICTIM'S DEATH, THE ENSUING INCRIMINATING STATEMENTS OBTAINED WERE NECESSARILY TAINTED, WARRANTING THEIR SUPPRESSION.
C. SINCE THE HOLDING IN STATE v. A.G.D., 178 N.J. 56 (2003) WAS APPLICABLE TO THE PRESENT CASE, THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE INCRIMINATING STATEMENTS OBTAINED BY LAW ENFORCEMENT IN VIOLATION THEREOF.
THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY ELICITED FROM THE STATE'S EXPERT WITNESS IN REBUTTAL WHICH PRESENTED THE ASSERTION THAT THE DEFENSE EXPERT WAS MALINGERING FOR THE DEFENDANT.
This prosecution arises from the murder of ten-year-old Walter Contreras in Morristown on Sunday, May 20, 2001.*fn2 The record establishes that Contreras's mother returned from work at 6:00 p.m. to find her son Walter absent. When, some time later, Walter still had not returned home, Valenzuela became alarmed and commenced to search for him in locations that he frequented, including the Abbett Avenue Playground, where he often went to feed the ducks. She was unable to locate the child so, at approximately midnight, she contacted the Morristown Police Department, which began a missing persons investigation. Walter's body was found on the morning of May 22 lying under a log in a wooded area close to the Whippany River about one mile from the playground. His face and neck had numerous visible injuries. A later autopsy disclosed multiple skull fractures accompanied by a swelling of the brain and internal bleeding that had caused his death. The presence of sperm was detected in his underpants. A search of the area disclosed the murder weapon, a four-pronged metal garden cultivator.
A focus of the investigation into the murder was the Abbett Avenue Playground. A search of the playground on May 21 revealed discarded jeans that bore stains that tested positive for blood. A further search on May 25 disclosed a bloodstained light blue sweater with a distinctive pattern of blue and black triangles on it and black trim at the neck, waist and sleeves. Two witnesses identified the sweater as belonging to defendant. One, Sue Cardona, was a volunteer interpreter with a domestic violence crisis response team who had worked on cases involving defendant. Cardona stated that she had seen defendant wearing the sweater on numerous occasions, commencing in September 2000. Another interpreter, Yeison De Los Santos, stated that the sweater looked like one that he had seen on defendant. However, a number of additional witnesses identified various other people as having worn the sweater.
Information was also developed that defendant had been seen at the playground on the day of Walter's disappearance in the company of three other men. At approximately 6:15 p.m. that evening, Patrolman Brendan Briscoe, while conducting a bicycle patrol, saw the four men together in the playground. One had just taken a drink from an open can of beer and, upon seeing the officer, tossed the can into the woods. Briscoe gave him several summonses and obtained identifying information from the remainder, including defendant. He then ordered the men to leave the playground, but when he returned approximately twenty minutes later, defendant and one other man were still there. They were again ordered to leave.
Later that evening, at approximately 8:00 p.m., Walter was seen by parishioner David Kemp in defendant's presence at a carnival at St. Virgil's Roman Catholic Church. Although the carnival was closed, Kemp permitted Walter to shoot some hoops. At the time, he thought that Walter and defendant were related.
On a number of occasions, defendant was questioned by the police. On May 21, before Walter's body had been discovered, Patrolman Richard Lamperti encountered defendant at a Dunkin Donuts shop near the Morristown train station in the company of two of the men seen at the playground on the preceding day. He showed defendant a flier that the police had created that contained Walter's picture and information in Spanish regarding the missing child. Defendant looked at the picture with no emotion and stated that he had no knowledge of the boy, although he possibly knew his parents. He then passed the flier to his companions, none of whom knew the child.
On May 22, Officer Lamperti again showed defendant the flier, and he again denied any knowledge of the boy and stated that he had not seen the boy at the playground. On May 25, the police conducted a more lengthy non-custodial interview of defendant, utilizing a detective from the Morris County Prosecutor's Office as a Spanish interpreter. In response to questions regarding his activities on May 20, defendant stated that he had arrived at the park between 6:00 and 6:30 p.m., where he met up with a black male and two Hispanics. Defendant recounted the encounter with Patrolman Briscoe and stated that he then left the park and rode his bicycle to a convenience store on Martin Luther King Avenue, where he purchased a soda and some cookies. After riding around Morristown until approximately 9:45 p.m., defendant went to his brother's house at 42 Sussex Avenue, where he was staying in a basement room, and promptly fell asleep. Defendant was shown the flier depicting Walter for a third time, and again stated that he did not know the boy and added that he did not know the boy's family. Defendant also stated that he was unaware that there was a carnival on May 20. After questioning had concluded, defendant was permitted to leave police headquarters.
On May 28, after the sweater found at the playground was linked to defendant, among others, the police sought and were granted search warrants for defendant's person and his room in the basement of 42 Sussex Avenue. The affidavit of Detective Sergeant Mark Stockbower in support of issuance of the warrants recited the identification by Cardona and de Los Santos of defendant as the wearer of the sweater. It did not mention other persons who had been identified as having been seen in the sweater. Also on May 28, further non-custodial questioning of defendant regarding his activities on May 20 occurred, at which time defendant described his day in a manner that was roughly similar to his previous statement. Additionally, that night, pursuant to the newly-issued warrant, a buccal swab and various other personal samples were taken from defendant, and he was both photographed and fingerprinted. The samples were then submitted for forensic analysis.
On June 6, at 5:51 p.m., James Gannon, a lieutenant in the Morris County Prosecutor's Office who was working on the Contreras case, was informed that DNA analysis had disclosed a preliminary match between evidence submitted and defendant's DNA. At 6:00 p.m., defendant walked into Morristown Police Headquarters - an event that "flabbergasted" Gannon. Determining to delay a further interview with defendant until the following day, the police devised a ruse to insure defendant's presence, informing him that they had day labor for him to do.
Prior to any interview on the following day, the police were informed that the tentative DNA match had been confirmed, and they obtained a warrant for defendant's arrest. However, when the interview with defendant was commenced at approximately 10:00 a.m., he was administered Miranda*fn3 warnings, but he was not informed that a warrant for his arrest had been issued. At 12:55 p.m., the officers brought up the subject of DNA testing, explained it to defendant, and told him that his DNA had been found on Contreras's underwear. Although after hearing this information defendant became agitated, he continued to deny any knowledge of the murder.
Following a short break at about 3:30 p.m., the interview was resumed, with Lieutenant Gannon leading the interrogation. At this point, defendant was informed that he was going to be charged with the murder of Walter Contreras, aggravated sexual assault, kidnapping, and possession of a weapon for an unlawful purpose, and that he was going to be committed to the Morris County Jail. Defendant cried and stated, "My life is over." Then, over a period of time, he confessed, revealing that he had attempted to anally penetrate Contreras, but that he had ejaculated prematurely. He killed the child to conceal the sexual assault. At 7:15 p.m., a taped confession was commenced that concluded ...