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State of New Jersey v. Emilio R. Giron


December 14, 2011


On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 99-11-1594.

Per curiam.



Submitted November 7, 2011

Before Judges Parrillo and Grall.

Tried in absentia by a jury, defendant Emilio R. Giron was found guilty of two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(5), (Counts four and ten); two additional counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4), (Counts five and eleven); two counts of sexual assault, N.J.S.A. 2C:14-2(c)(1), (Counts six and twelve); two counts of kidnapping, N.J.S.A. 2C:13-1(b), (Counts seven and thirteen); two counts of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), (Counts eight and fourteen); two counts of weapon possession under manifestly inappropriate circumstances, N.J.S.A. 2C:39-5(d), (Counts nine and fifteen); and two counts of robbery, N.J.S.A. 2C:15-1, (Counts sixteen and seventeen). At sentencing nine years later on March 24, 2009, the court imposed consecutive fifteen terms subject to eighty-five percent parole ineligibility on each of the kidnapping charges (Counts seven and thirteen). The court then merged count six with count four; counts eight and nine with count five; count twelve with count ten; counts fourteen and fifteen with count thirteen; and count seventeen with count sixteen; and imposed concurrent thirteen-year terms on counts four, five, ten, eleven and sixteen, subject to the eighty-five percent parole bar, for an aggregate sentence of thirty years subject to the eighty-five percent parole disqualifier. Defendant appeals. We affirm save for a limited remand to correct the judgment of conviction to reflect a fifteen-year sentence on the kidnapping conviction encompassed in count thirteen.

Together with the same three confederates, defendant participated in two separate episodes over a three-day period involving two different women whom they forced into their truck and proceeded to rape at knife point. According to the State's proofs, on August 28, 1998, at 12:30 a.m., S.J. was at Elmwood Gardens on the corner of Elmwood Place and West Second Street in Plainfield. At 1:00 a.m., she walked about a block away to a phone booth near a Getty gas station to call her boyfriend for a ride. A white, two-door truck pulled up and a man exited to ask her for directions. S.J. was then grabbed from behind, and the assailant put a knife to her neck.

S.J. was forced into the back seat area of the truck. There were four Hispanic men in the truck, two in the front seat, and two in the back. The man in the driver's seat, later identified as defendant, was heavy set, with short, curly hair, and he told S.J. that they were from Mexico. He drove the truck to a spot on Wiley Avenue, parked the car, then drove a few more blocks and parked again. Then the two men in the back seat began to undress S.J. One of the men in the back seat had a box cutter, and the man in the front passenger seat had a knife. While her clothes were being pulled off, the driver told S.J. to perform oral sex on one man in the back seat and allow the other to have sex with her. One of the men in the back seat brandished the knife while penetrating her.

The two men then switched places at the driver's instructions, with the men in the front seat. When the two men in the front got into the back, the driver asked her to "suck his dick," which she did while the other man "put his dick in [her] butt." Once each male ejaculated, they switched so that "the fat one, Mario, would put his dick in [her] butt[,]" while she performed fellatio on the skinnier man. They both ejaculated and, although the driver never had a knife, the skinnier male who had initially accosted her did so. S.J. recalled the driver spoke English well, and the others spoke only Spanish. Throughout the rapes, the other men spoke Spanish to the driver, who then gave S.J. instructions in English. S.J. recalled one man was called Edward, another Jose, and the driver, Mario.

After the rapes, the men gave S.J. her clothes, but refused to return her pocketbook. When she was ordered out of the vehicle, the skinnier male with the knife pushed her with his hands against her back for her to run, before he returned to the truck.

S.J. then called the police and was taken to the hospital where she spoke with Detective Jorge Jiminez and gave a description of the truck and four individuals. She described Mario, the driver, as heavy-set with short, curly hair and the front seat passenger, who had initially accosted her with the knife, as skinny and short. One of the backseat passengers was fat with long, curly hair, while the other male was short and skinny and had possessed a box cutter-type knife.

S.J. was treated at the hospital. Semen was found on her shirt, semen and blood was found on her shorts, and blood was found in her rectal and vaginal swabs.

The second incident involved a woman named J.B. and occurred two days later on August 30, 1998. J.B. worked as a prostitute and was walking on Richmond and East Front Streets in Plainfield at around 2:00 or 3:00 a.m. in search of drugs. A white Blazer truck pulled alongside her and she recognized the driver, described as fat with curly hair, as someone named Mario whom she went to junior-high school with. The men in the front seat propositioned her for prostitution. She agreed to have sex with both of them for $20.00.

When she entered the truck, J.B. found two more men in the back seat. As the truck drove off, she indicated she wanted more money for the other two men, and also asked for a cigarette. The driver then pulled into a nearby Shell gas station, exited the vehicle and entered the convenience store.

At this time, the short Spanish male whom she was sitting next to pulled out a knife, put it against her neck and told her he would kill her.

When they drove off, she begged them not to kill her but was told to shut up, mainly by the driver. The truck eventually stopped about four blocks away in a dark area, at which time the men in the back removed her clothes while holding the knife to her neck. J.B. was forced to perform oral sex on all of the men, and had vaginal sex with two of them. It was "one right after the other." The driver was one of the two individuals who vaginally penetrated her. J.B. specifically remembers seeing the driver's face very clearly, noting, "I can always remember his face." At some point, before he had sex with J.B., the driver took the knife from one of the other men and placed it on the dashboard, saying no one was going to hurt her.

J.B. was forced out of the van still naked and the men threw her clothes at her. They kept her bag, however, which contained a phone, camera, and Sega Genesis. J.B. walked to the Shell gas station and called the police. Detective David Carmen responded, interviewed J.B., and took her to the hospital.

Later that day, Detective Jimenez learned of the second sexual assault involving a similar-type vehicle and similar descriptions of the perpetrators. He also learned one of the individuals involved in the second assault had gone to the Shell gas station/mini mart and purchased condoms before entering the vehicle and leaving. Jimenez went to the gas station on August 31 and obtained the surveillance video which depicted defendant buying condoms.

About a week later, J.B. accompanied Detectives Carmen and Brown around town and pointed out a two-door white Chevy Blazer as being similar to the vehicle she was raped in. Detective Carmen stopped the vehicle and was given permission by its owners to photograph it. Detective Carmen then scanned the photograph and broadcast it to the other units in the Plainfield Police Department. A few days later, Detective Carmen was driving in Plainfield with another officer when J.B. approached the patrol car. J.B. told the officers that she had seen a truck similar to the one driven by the men who raped her and provided them with the license plate of that vehicle.

On September 13 or 14, Detective Wilson, aware of the cases Detectives Carmen and Jimenez were working on and knowing the description of the suspect vehicle, observed the vehicle and stopped it. It was occupied by a heavy-set, Hispanic male who provided Wilson with his driver's license in the name of Emilio Giron. Wilson also recorded the license plate of the vehicle and defendant's residence.

As a result, Detective Wilson went to defendant's residence, and requested that he come to police headquarters to have his photo taken. Defendant complied. His photograph was included in an array that was shown to J.B. on September 17, at which time she positively identified defendant as one of her assailants and the driver of the vehicle. When a similar array was shown to S.J. that same day, she also identified defendant as one of her assailants and the driver of the vehicle. Defendant was arrested that evening based on these identifications.

In his statement to the police the next morning following Miranda*fn1 warnings, defendant acknowledged being involved in both incidents. He explained that he and his friends were returning from a night at a dancing club when they told him to find a prostitute. When they saw a woman on the phone at the Getty gas station, defendant stopped the Chevrolet Blazer, which belonged to his wife, and the woman agreed to go for a ride. While negotiating over price, "Eric (Quintanilla) got crazy and he put a knife at her throat." He then told her she was going to have sex with all of them while he held the knife at her throat. Defendant told Eric not to cut her or do anything stupid. While he indicated "the other guys had sex with her[,]" he stated he did not have sex with her but rather "[s]he gave me a blow job." Thereafter, they told her to get out of the car, during which time Oseas (Pons) took her out of the car and told her to run, after which they left.

The second incident also began as a search for a prostitute after a night of clubbing. When the victim they eventually found suggested their offer was "too cheap[,]" "Eric (Quintanilla) got crazy again and put the knife in her throat." Defendant told him not to do anything stupid. She began screaming not to kill her, and he tried to assure the woman they were not going to do anything to her. Defendant then parked the car and, as Eric and Pons held knives, "we started having sex with her." They told her to get out of the car, keeping her bag which contained a Game Boy and "some more stuff." The other three men involved were Eric Quintanilla, Oseas (Pons) and a Honduran.

Evidently crediting the State's account, the jury found defendant guilty as charged. On appeal, defendant raises the following issues:








We will address these arguments in the order raised.

I Defendant first moved for a severance at the commencement of trial on June 6, 2000, despite a February 28, 2000 trial memorandum fixing the deadline for all pre-trial motions at May 1, 2000. The trial judge denied the motion on both procedural, Rule 1:2-4(b); Rule 3:10-2(a); and Rule 3:15-2(c), and substantive grounds. As to the former, the judge found no good cause to extend the deadline, and as to the latter, he concluded that under N.J.R.E. 404(b), evidence of each incident would be admissible at the trial of the other to prove defendant's state of mind, intent, or absence of mistake. Defendant contends the court erred in denying this severance motion.

We disagree.

Rule 3:7-6 provides for the joinder of multiple charges in a single indictment where they "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Under Rule 3:15-2(b), a court may order separate trials of counts of an indictment if "it appears that a defendant . . . is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment[,]" that is, if joinder will deny him a fair trial. State v. Modell, 260 N.J. Super. 227, 245 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993); State v. Coruzzi, 189 N.J. Super. 273, 297 (App. Div.), certif. denied, 94 N.J. 531 (1983), appeal dismissed, 469 U.S. 802, 105 S. Ct. 56, 83 L. Ed. 2d 8 (1984).

A defendant moving for severance bears the burden of demonstrating prejudice. State v. Lado, 275 N.J. Super. 140, 149 (App. Div.), certif. denied, 138 N.J. 271 (1994). The decision to grant or deny a motion for severance rests within the "'sound discretion'" of the trial court. State v. Sanchez, 143 N.J. 273, 283 (1996) (quoting State v. Brown, 118 N.J. 595, 603 (1990)). In exercising this discretion, a trial judge must "weigh the interests of judicial economy and efficiency against the right of every accused to have the merits of his case fairly decided." State v. Scioscia, 200 N.J. Super. 28, 43 (App. Div.) (citing State v. Aiello, 91 N.J. Super. 457, 466 (App. Div.), certif. denied, 48 N.J. 138 (1966), cert. denied, 388 U.S. 913, 87 S. Ct. 2106, 18 L. Ed. 2d 1351 (1967)), certif. denied, 101 N.J. 277 (1985). Where the judge conducts that weighing process and ultimately denies severance, that denial "will not be reversed in the absence of a clear showing of a mistaken exercise of that discretion." Id. at 42. This is because the trial judge is in the best position to engage in the balancing process and thus the trial judge's decision is accorded appropriate deference. State v. Frost, 242 N.J. Super. 601, 619 (App. Div.), certif. denied, 127 N.J. 321 (1990).

In determining whether multiple offenses should be tried together, the trial judge should consider "whether, assuming the charges were tried separately," proof of one crime would be admissible in the trial of the other pursuant to N.J.R.E. 404(b). State v. Pitts, 116 N.J. 580, 601-02 (1989). Here, the judge found that even if the sexual assault offenses against S.J. and J.B. were severed, proof of each would be admitted at both trials.

We agree. No undue prejudice befell defendant from joinder of these offenses because had there been separate trials, we are satisfied that evidence of each sexual assault incident would have been admissible in both proceedings under the standard set forth in State v. Cofield, 127 N.J. 328 (1992). Cofield's four-part test to admit N.J.R.E. 404(b) "other crimes" evidence is as follows:

(1) The evidence of the other crime must be admissible as relevant to a material issue;

(2) It must be similar in kind and reasonably close in time to the offense charged;

(3) The evidence of the other crime must be clear and convincing; and

(4) The probative value of the evidence must not be outweighed by its apparent prejudice.

[Id. at 338 (quoting Abraham P. Ordover,

Balancing, The Presumptions of Guilt And Innocence: Rules 404(b), 608(b) and 609(c), 38 Emory L.J. 135, 160 (1989)).]

Under the first prong, given defendant's articulated trial strategy that sex with both victims was consensual and bargained for, evidence of the other incident was highly probative of defendant's state of mind and intent as well as the absence of mistake, as claimed by defendant. Such "other crime" evidence was also relevant to the issue of defendant's identification and helped explain not only the discovery of the vehicle in which both crimes occurred, but ultimately the apprehension of defendant himself. Because the investigations of both crimes were substantially intertwined, evidence developed through J.B.'s assistance was integral in resolving the crime against S.J. and would be admissible in a separate trial for that reason alone.

As for the second prong, the sexual assaults upon the two victims were largely identical, close in time, occurring within forty-eight hours of each other, and followed a certain common plan or scheme. In this regard, the crimes both happened after a night of clubbing and involved defendant and the same three companions. This quartet forced each victim into the same vehicle, and drove to a secluded area where they gang raped both of them at knifepoint. Third, evidence of these crimes was clear and convincing as both victims identified defendant, who was later found in the same truck where the sex crimes were perpetrated and who admitted having sex with both victims. Lastly, the relevance of such evidence far outweighed its prejudicial impact, which was greatly mitigated by the court's limiting instruction, advising the jury of its restricted and narrow use. Because the Cofield test was amply satisfied in this instance, we discern no abuse of discretion in either the court's penultimate evidential ruling finding the "other crime" proof admissible under N.J.R.E. 404(b), see State v. Marrero, 148 N.J. 469, 503 (1997), or its final determination denying defendant's severance motion.


Defendant challenges several comments of the prosecutor in summation as fatally prejudicial. Specifically, he points to the prosecutor's statement that defendant could have been charged with the robbery of S.J.'s purse; the prosecutor asking the jury not to "imagine what [defendant] would say" if he were present at trial; and the prosecutor's criticism of defense counsel's vigorous cross-examination of the victim-witnesses. None of these comments, either singly or cumulatively considered, deprived defendant of a fair trial. Moreover, each remark was adequately addressed by the court's curative instructions.

By referring to the prospect of charging defendant with the robbery of S.J.'s purse, the prosecutor did not impermissibly comment on matters outside the record. See State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). On the contrary, there was testimony that defendant and his accomplices kept S.J.'s pocketbook despite her request for its return. Indeed, even defense counsel remarked that defendant's actions "are not consistent with somebody who just . . . raped and robbed two women." (emphasis added). In any event, the court remedied any potential for harm by specifically addressing the matter:

There was some comment about . . . [that] there could have been a charge of robbery from [S.J.]. Disregard that comment. You're going to only have to decide the actual charges in this case. It's the elements of those offenses that you will address as to whether the state has met its burdens. Disregard whether there could have been other charges filed or not.

The testimony about what happened is going to be important, and you use that in any way you see fit. But the fact that there might have been another charge, disregard it.

Now, you heard it. I just went over it again. You know, you're going to say, well, how can I disregard it? You just told us again, Judge. The bottom line is, when you begin your deliberations, if it should come up in your mind or if you hear a fellow juror say, well, what about DNA? Un-unn. The judge says there was no testimony. We can't consider that. Plays no part in your decision making process.

We presume the jury followed this instruction. State v. Burns, 192 N.J. 312, 335 (2007).

The next challenged remark did not amount to a comment on defendant's failure to testify. See, e.g., State v. Engel, 249 N.J. Super. 336, 381-82 (App. Div.), certif. denied, 130 N.J. 393 (1991). Put in context, it was immediately preceded by the prosecutor's statement "[t]he defendant's not here, and the judge will tell you, you can't hold that against him, and please don't, but please don't imagine what he would say." (emphasis added). The underscored portion of the statement was in direct response to defense counsel's argument on summation that defendant did not fully understand English or the contents of his statement to the police, specifically the word "assault." The prosecutor, in meeting this argument, was simply reminding the jury not to assume what defendant would have said or that he does not understand English, rather than commenting on defendant's failure to testify. In any event, the court twice instructed the jury that "defendant is not present, and though not present you should not view that fact negatively. You must decide this case on the evidence that is presented." The judge again reminded the jury that defendant has a constitutional right to remain silent and the fact that he did not testify should not enter into its deliberations in any way.

Lastly, contrary to defendant's contention, the prosecutor did not impugn defense counsel's cross-examination, which attacked the credibility of both victims largely because of their backgrounds, and accused one of them of lying when it was convenient for her. In direct response, the prosecutor simply countered, "[w]hat's convenient about being called a whore? You know, this happening to her, bad enough. To have to come in here to talk to you people about being anally raped, about having to give oral sex, you think that's convenient?" We find no impropriety in this rebuttal. In any event, the court's curative instruction in response to defense counsel's objection neutralized any potential prejudice to defendant. Specifically, the court explained to the jury: ladies and gentlemen, again, just so it's clear, both the state and defense attorneys have responsibilities and certainly one of those responsibilities of the defense counsel is to cross-examine - - to prod, to determine information that may be of assistance to the defendant's case.

The defense counsel did nothing wrong in the manner and procedures of her cross.

The court again instructed the jury on this very issue in its final charge: again, some comments were made. I'm going to remind you that defense counsel has an obligation to vigorously cross-examine witnesses and so if anything - - if there [were] any comments that you perceived as being somewhat negative to counsel, counsel - - it has no bearing. Your focus is this defendant. Under the law, is this defendant guilty of any of the offenses charged.

In sum, the prosecutor's comments in summation were not improper; were for the most part invited by defense counsel; and, to the extent they held any capacity for prejudice, were remedied effectively by the court's cautionary, curative instructions.


Almost nine years after his trial and just prior to his sentencing on March 24, 2009, defendant moved for a new trial on the basis of his absence from the original proceeding. Without benefit of any trial transcripts wherein the issue of defendant's absence may have been raised, the judge found that the matter had been set for trial preemptorily for May 22, 2000. All parties agreed that defendant was aware of the trial date and actually signed a trial memorandum dated February 28, 2000, designating May 22 as the preemptory trial date and further instructing that if defendant failed to appear for trial, it would proceed in his absence.

Sometime thereafter, as a result of a chambers conference which defendant did not attend, a new trial date was set for June 5, 2000. Defense counsel notified defendant by letter of May 5, 2000 of the new trial date, although attempts to reach him by telephone were unsuccessful.

There is no indication that defendant appeared on May 22, 2000 and clearly he did not show up on the rescheduled trial date of June 5. When defense counsel objected to proceeding without defendant on June 5, the trial judge concluded at that time that defendant voluntarily waived his right to be present since he had personal knowledge of the May 22 trial date and had been sent a letter by his trial attorney regarding the new trial date of June 5. The judge further concluded there were only two possible inferences. Either defendant knew the May 22 trial date had been adjourned, which was why he did not fly up from Texas, and was aware of the letter sent to him that the new date was June 5, or alternatively, had knowingly absented himself on May 22, and never got in touch with his attorney at any point thereafter. Under either scenario, the court was satisfied the defendant failed to appear on the originally scheduled trial date because he either chose not to be present or he had received the letter from trial counsel informing him of the new trial date.

Based on this reasoning, the court, nine years later when the issue was revisited in defendant's March 24, 2009 motion for a new trial, rendered the same ruling. We discern no error.

Rule 3:16 mandates that a criminal defendant be present at every stage of a trial. However, a defendant may waive his right to be present.

A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.

[R. 3:16(b).]

"'[O]nce a defendant has been given actual notice of a scheduled trial date, nonappearance on the scheduled or adjourned trial date is deemed a waiver of the right to be present during the trial absent a showing of justification by the defendant.'" State v. Dwight, 378 N.J. Super. 289, 295 (App. Div.), certif. denied, 185 N.J. 391 (2005) (quoting State v. Finklea, 147 N.J. 211 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997)). A "defendant's inexcusable absence from trial, under circumstances demonstrating knowledge of the time and place of trial, the right to be present, and that the trial may proceed if defendant is absent, constitutes a sufficient basis for a trial court's decision to proceed." State v. Hudson, 119 N.J. 165, 183 (1990). "Trial judges have discretion in deciding whether to start a trial when a defendant is inexcusably absent." State v. Luna, 193 N.J. 202, 216 (2007).

Here, defendant received actual notice in court of the May 22, 2000 trial date and signed a memorandum to that effect, specifically advising him of the consequences of a failure to appear. The judge, at the commencement of trial, found that defendant did not appear in court on that date, a finding to which we defer, State v. Locurto, 157 N.J. 463, 474-75 (1999), and thus knowingly and voluntarily absented himself from trial. Although the trial had been rescheduled to June 5, 2000, defendant never appeared on that date as well despite defense counsel having informed defendant of the new date by mail. Under the circumstances, the court found that defendant either voluntarily absented himself from the May 22 trial date or knew about the June 5 adjourned date and voluntarily absented himself from trial on that date:

Under these circumstances, I'm satisfied the defendant failed to appear on the original scheduled trial date because . . . he either chose not to or he had gotten the letter . . . dated May 5th telling him to be here on June 5th. Under the circumstances, I'm satisfied the defendant has willfully absented himself from this Court and from this jurisdiction. We will proceed in his absence.

The finding that defendant's absence from trial was inexcusable is supported in both fact and law and the resultant determination to proceed to trial was a proper exercise of the court's discretion.


During the trial, Detective Carmen gratuitously volunteered that after his interview with J.B., he knew "there definitely was a sexual assault that was committed." When defense counsel objected, the court effectively struck the witness's opinion and issued the following curative instruction:

Ladies and Gentlemen, again obviously you heard the testimony already, you heard testimony from [J.B.], you heard a statement of the defendant. This officer's opinion at this point in time is not to be considered by you as to -- in any way.

Defendant now argues on appeal that the detective's comment constituted reversible error because it improperly vouched for a witness's credibility and opined as to the ultimate issue of defendant's guilt. We disagree that the stricken remark had the capacity to produce an unjust result.

In the first place, the detective's comment was neither invited nor suggested by the prosecutor's questioning. Second, the opinion expressed did not implicate defendant in the crimes charged given the multiple assailants involved. Defendant's theory that he engaged in consensual sex and did not assault J.B. remained viable. Indeed, the jury could accept that J.B. was sexually assaulted by individuals other than defendant. Third, the court's curative instruction effectively remedied any potential harm arising from the detective's isolated and brief remark.


We also reject defendant's final contention that his aggregate thirty-year sentence subject to an eighty-five percent parole bar is excessive. The fifteen-year terms imposed on his dual kidnapping convictions*fn2 were properly made to run consecutively because the crimes involved separate acts of violence occurring at different times and involving multiple victims. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); see also State v. Carey, 168 N.J. 413, 429-30 (2001). Moreover, the length of each term was supported by the weight of the aggravating factors found, N.J.S.A. 2C:44-1a(2), (3) and

(9), as well as the absence of mitigating circumstances. We therefore find no warrant to interfere with the sentence imposed.

The judgment of conviction is affirmed save for a limited remand to have it correctly reflect the fifteen-year term actually imposed on count thirteen.

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