On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-12-01662.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2011
Before Judges Parrillo, Alvarez and Skillman.
Tried by a jury, defendant Jonathan Zarate was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count 1); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count 6); second-degree desecrating human remains, N.J.S.A. 2C:22-1(a)(1) (count 7); second-degree use of a juvenile to commit a crime, N.J.S.A. 2C:24-9(a)(3) (count 8); two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts 2 and 4), and two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts 3 and 5). He was sentenced to an aggregate term of life imprisonment plus twenty-four years and assessed appropriate fines and penalties. Defendant appeals. Save for the vacatur of the sentence on count four, which merges with count one, we affirm the judgment of conviction.
This criminal episode stems from the brutal murder and dismemberment of defendant's sixteen-year-old neighbor, Jennifer Parks. According to the State's proofs, defendant invited Jennifer to his father's home to watch television at around 1:30 a.m. on July 30, 2005. Both he and his younger brother had been acquainted with her for some time from school and the neighborhood. Jennifer had not been on good terms with defendant's brother, whom she accused of teasing her and who had been disciplined at school a couple of years prior based on those accusations.
After about an hour, defendant and Parks began arguing about defendant's brother. The argument escalated, and defendant began to punch and kick Parks in the face, and used a metal rod from the nearby sliding glass door to beat her. He then choked her, first with his forearm, and then with a bandana, which he stuffed down her throat. Once she lost consciousness, he went to the kitchen and fetched a knife, which he used to stab her several times around the mouth, throat, hip and abdomen.
Defendant used the knife again to remove Parks' legs at the knee to fit her torso into a trunk that he found in the garage. His first attempt at severing her legs was at the right thigh. The resulting hemorrhaging eventually led the medical examiner to conclude that she had still been alive when he made the aborted attempt. In the remaining early morning hours, he cleaned the murder scene with bleach, and placed the trunk in the back of his father's jeep along with plastic garbage bags containing Parks' severed legs. He did not attempt to dispose of either until the following day.
At approximately 3:00 a.m. on July 31, 2005, Officer Robert Ulrich of the Secaucus Police Department found defendant standing by the side of his jeep, stopped near the Union Avenue Bridge with its headlights off. Two other individuals - defendant's brother and a friend - both of them minors, were near the rear of the vehicle carrying the trunk. The two abruptly dropped the trunk and returned to the vehicle with defendant upon spotting Ulrich, but Ulrich approached with his gun drawn and instructed defendant, who had gotten into the driver's seat, to shut the vehicle off. Defendant complied.
Defendant attempted to persuade Ulrich that he was dumping garbage, but based on the odor coming from the vehicle, Ulrich suspected otherwise and requested backup. When additional officers arrived, he approached the trunk and noticed clothing, skin and dried blood, confirming his suspicion as to the trunk's contents. The medical examiner was called and opened the trunk to discover Parks' remains, her face covered with a bag. Her legs were found in the rear of the jeep.
An autopsy revealed blunt force injuries to Parks' face, stomach, and back and defensive wounds to her hands. She suffered puncture wounds to her neck and abdomen, as well as the cut to her thigh resulting from defendant's aborted amputation of her right leg at that location, while her heart was still circulating blood through her body. The medical examiner concluded that all of those injuries contributed to her death.
Defendant relied on a diminished-capacity defense at trial. His psychological expert, Dr. Diana Riccioli, diagnosed defendant as suffering from a psychotic disorder and polysubstance abuse, due to his history of marijuana, PCP, and alcohol use, and from an antisocial personality disorder. She explained that his condition rendered him prone to delusion and paranoia, and that he had killed Parks in the deluded belief that he was defending himself from an impending attack by her. She also stated he had an irrational belief that his actions would show his brother he cared for him. Riccioli based her assessment on information gleaned from interviews with defendant, his mother and step-father, and his father, as well as from medical records and his taped confession. However, she had not reviewed a psychologist's report prepared just a month before the homicide finding defendant in considerably better mental health, with no reports of substance abuse. Nonetheless, she testified that this report did not alter her opinion. The State's psychological expert, Dr. Daniel Greenfield, concurred with Riccioli that defendant suffered from a personality disorder but disagreed that it prevented him from acting purposefully or knowingly.
Evidently crediting the State's proofs, the jury convicted defendant of the murder and dismemberment of Parks and all related offenses charged.
On appeal, defendant, through counsel, raises the following issues:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A CHANGE OF VENUE, OR IN THE ALTERNATIVE, FOR A FOREIGN JURY POOL.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE INTRODUCTION INTO EVIDENCE ALL OF THE PREJUDICIAL PHOTOGRAPHS OF JENNIFER PARKS.
III. THE TRIAL COURT ERRED IN PERMITTING THE ALLEGED CONFESSIONS OF JONATHAN ZARATE TO BE USED AT THE TIME OF TRIAL FOLLOWING THE MIRANDA HEARING.
IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE THE TESTIMONY OF THE STATE'S FORENSIC DNA EXPERTS, MATT WOOD AND ELLIOT CLARK, AS THEY FAILED TO TESTIFY BASED ON A REASONABLE DEGREE OF MEDICAL CERTAINTY.
V. THE DEFENDANT WAS DENIED HIS SIXTH AMEND[MENT] RIGHT TO AN IMPARTIAL JURY MADE UP [OF] A FAIR CROSS-SECTION OF THE COMMUNITY.
VI. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO DISPLAY A KNIFE DURING THE TRIAL AND THE TRUNK THROUGHOUT THE TRIAL.
VII. IT WAS REVERSIBLE ERROR FOR THE COURT TO PERMIT THE STATE'S MEDICAL EXAMINER TO TESTIFY REGARDING THIS MURDER BASED ON BODY TEMPERATURE TAKEN BY A POLICE OFFICER/NON[-]EXPERT.
VIII. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
IX. THE SENTENCE IMPOSED UPON DEFENDANT WAS EXCESSIVE AND AN ABUSE OF DISCRETION AND MUST BE OVERTURNED.
X. THE SENTENCE MUST BE REVERSED BECAUSE THE HEARTLAND OF THE CASE DOES NOT CONFORM TO OTHER CASES IN THE NEW JERSEY SUPERIOR COURT PANALOPY OF DECISIONS WHICH DIFFER FROM THE SENTENCING APPLIED.
In addition, defendant pro se raises the following arguments:
I. THE ADMISSION OF EXTREMELY DAMAGING, BLATANTLY INADMISSIBLE HEARSAY EVIDENCE TO BOLSTER THE STATE'S CASE, VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION AND THE HEARSAY PROHIBITION OF THE EVIDENCE RULES. (Partially Raised Below).
II. THE PROSECUTOR'S REPEATED COMMENTS ON SILENCE WERE INAPPROPRIATE AND INFRINGED ON DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT AND STATE LAW. (Not Raised Below).
III. REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN THIS LETTER BRIEF, AS WELL AS THE ERRORS SET FORTH IN APPELLATE COUNSEL'S MERIT BRIEF AND OR ARGUMENTS ON DIRECT APPEAL.
We proceed to address those issues worthy of discussion.
I Defendant argues that extensive, prejudicial pretrial publicity regarding his case necessitated either a change of venue or, in the alternative, trial by a foreign jury. Even aside from the publicity, defendant cites to the then recent anti-immigration rallies in nearby Morristown by the anti-Hispanic "Pro-America" movement in further support of his claim that a fair trial could not be had in the chosen venue. We disagree.
Criminal defendants have both a state and federal constitutional right to a fair trial by an impartial jury. State v. Loftin, 191 N.J. 172, 187 (2007). Where such a trial cannot otherwise be had in a particular venue, the rules authorize a trial court to order a change of venue or empanel a foreign jury. R. 3:14-2. A court's decision whether to grant either form of relief rests within its sound discretion. State v. Nelson, 173 N.J. 417, 476-77 (2002).
The inquiry pertinent to that decision is "whether an impartial jury could be obtained from among the citizens of the county or whether they are so aroused [by pretrial publicity] that they would not be qualified to sit as a jury to try the case." State v. Wise, 19 N.J. 59, 73 (1955). Prospective jurors need not be wholly ignorant of the case, and even "pervasive pretrial publicity does not necessarily preclude the likelihood of an impartial jury." State v. Koedatich, 112 N.J. 225, 268 (1988); see also State v. Biegenwald, 106 N.J. 13, 35 (1987). Nonetheless, where such publicity can prejudice a defendant's right to a fair trial, a court must discern whether a change in venue or empanelment of a foreign jury would be "'necessary to overcome the realistic likelihood of prejudice[,]'" Biegenwald, supra, 106 N.J. at 33 (quoting State v. Williams, 93 N.J. 39, 67 n.13 (1983)), or whether other alternatives, such as "the use of searching voir dire examinations" or a delay of the trial would suffice to eliminate that likelihood. Id. at 32; see also Williams, supra, 93 N.J. at 68.
The trial judge acknowledged the extent of the publicity surrounding the trial, but noted that defendant had presented no evidence of editorials urging a guilty verdict or any specific punishment; reported information that would be inadmissible at trial; inappropriate comments from the prosecution; or any prejudicial account of his prior criminal history. Nor did the extent of that publicity contribute to any carnival-like atmosphere around the proceedings, which had been and would continue to be held in an atmosphere of judicial calm, without any intrusion from the press. Moreover, the initial torrent of publicity had subsided long before the impending trial, which occurred years after the murder. With respect to the anti-immigration rally, the court observed that defendant had presented no information about it, including how many people attended or the circumstances of their attendance, and, in any event, defendant was not himself in this country illegally and so certainly not a target of any negative sentiment from the rally.
The court determined that, in all, the character of the reporting "only reflected the concern of the community as opposed to . . . hostility towards the defendant." It added that "an exhaustive voir dire, searching questions of prospective jurors could be used to weed out those who are potentially infected by pretrial publicity[,]" particularly one undertaken by the experienced counsel here. An additional safeguard would be "emphatic and clear instructions to the jury instructing them to decide issues solely on the evidence." The court concluded that, under those circumstances, defendant's right to a fair trial by an impartial jury, as well as the victim's family's right to attend the trial, could be scrupulously protected without the need for a change of venue or empanelment of a foreign jury.
The court's determination that a fair and impartial jury could be obtained from among the citizens of Morris County finds adequate support in the evidence and does not constitute an abuse of discretion.
Somewhat relatedly, defendant argues that he was denied his Sixth Amendment right to an impartial jury trial due to a relative lack of racial diversity in the county's jury pool. Again, we disagree.
The Sixth Amendment guarantees every criminal defendant "the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community." Berghuis v. Smith, 559 U.S. ___, ___, 130 S. Ct. 1382, 1387, 176 L. Ed. 2d 249, 254 (2010). It thus ensures them "the benefit of the common-sense judgment of the community[,]" untainted by the "appearance of unfairness" that would surely arise from the exclusion of "large groups of individuals[,] not on the basis of their inability to serve as jurors, but on the basis of some immutable characteristic such as race, gender, or ethnic background." Lockhart v. McCree, 476 U.S. 162, 175, 106 S. Ct. 1758, 1766, 90 L. Ed. 2d 137, 149 (1986). A jury need not "mirror the community" or be "of any particular [racial or ethnic] composition" to satisfy that guarantee, but must be selected from a pool that does not "systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690, 703 (1975).
To demonstrate that a particular juror-pool selection method does not comply with that requirement, a defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to systematic exclusion of the group in the jury-selection process. [Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579, 586-87 (1979).]
Defendant argues that African-Americans and Hispanics have been systematically excluded from juror pools in Morris County because the county builds those pools from voter registration lists in which those two populations are consistently underrepresented. However, the New Jersey Supreme Court has already upheld precisely that method of selection as facially sound, State v. Coyle, 119 N.J. 194, 214 (1990) (citing State v. Ramseur, 106 N.J. 123, 224 (1987)), and defendant presents no evidence that it was constitutionally defective as applied here.
Defendant does present data pertaining to the racial composition of the juror pool at his own trial and of the county population as a whole, in an attempt to demonstrate a discrepancy between the two. However, defendant offers no statistical analysis of the significance of any such discrepancy that might satisfy the second prong of the standard. Nor does he introduce similar data of other juror pools that might prove, pursuant to the third prong, that any under-representation in the pool for his own trial was the product of systematic exclusion rather than just an anomaly. The voter-registration data he presents from a single election cycle does not cure that deficiency. Accordingly, defendant has failed to establish a prima facie case of the claimed Sixth Amendment violation.
Defendant argues that certain photographs of the deceased victim exhibited in conjunction with the medical examiner's testimony were so prejudicial as to warrant their exclusion. The numerous photographs depicted various areas of the victim's body where she had been beaten or stabbed, and the medical examiner referred to them in describing the extent of her injuries and explaining the cause of her death. Not all were ultimately admitted into evidence.
While "likely to cause some emotional stirring in any case," relevant crime-scene or autopsy photographs are admissible unless "their probative value is so significantly outweighed by their inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence." State v. Thompson, 59 N.J. 396, 421 (1971). Where that is so, a trial court may exclude them pursuant to N.J.R.E. 403. Its ...