On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-09-3185.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Defendants Jonathan and Esterlin Torres,*fn1 brothers, were convicted of three counts of second-degree kidnapping, N.J.S.A. 2C:13-1b(1); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and two counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4). Jonathan was also convicted of third-degree escape, N.J.S.A. 2C:29-5a. Although defendants filed separate appeals, they raise substantially the same issues and we therefore combine the appeals in a single opinion. Defendants argue the court: failed to comply with State v. Gross, 121 N.J. 1 (1990), in permitting the State to use prior inconsistent statements of its own witnesses; denied defendants a fair trial by limiting the scope of cross-examination and erroneously allowing the admission of various hearsay statements; and erred in its jury instructions. They also claim the verdicts were against the weight of the evidence and the indictment was inadequate. Jonathan argues that his sentence was excessive. We reject defendants' arguments and affirm.
We summarize the salient facts elicited at the nine-day trial, and present additional facts and procedural history in the context of our legal discussion below.
Shortly after the end of the school day on March 19, 2007 a group of teenagers, including Patrick "P.J." Harris, Stuart Lawson, Joshua Calero and Quron Townsend, converged on the corner of 41st and Westfield Avenue in Camden outside a Chinese food store. The teens frequently "hung out" in that area after school. A few days before March 19, Harris had been "jumped" and beaten up by defendants.
Just before 3:00 p.m., defendants arrived near 41st and Westfield and made their presence known to Harris and Calero. In a video-recorded statement that the State offered as a prior inconsistent statement after a Gross hearing,*fn2 Calero asserted that defendants entered the Chinese food store where he and Harris were present, and Jonathan offered to shake Calero's hand. When Calero refused, Esterlin displayed a gun under his shirt, and defendants and Calero exchanged words. Defendants then left the store. Calero denied this exchange in his trial testimony. Harris and Lawson both testified that they saw Esterlin hand a gun to Jonathan.
Soon thereafter, shots were fired. Calero said in his prior statement that Jonathan was the shooter. Numerous witnesses, including school bus driver Carly Wilson who was driving through the area, testified that the group of teens on the corner began running in all directions. In his trial testimony, Calero denied he was shot at, claiming that defendants were his friends.
Harris's version of the events differed from Calero's prior statement. Harris testified that he was in the store and Calero entered to inform him that defendants were outside and that Harris should remain in the store. Calero then went outside the store. Harris testified that defendants never entered the store. Instead, he saw Jonathan across the street take a gun from Esterlin and point it at a group of his friends standing on the corner. Calero and Townsend were among those outside the store. Harris then heard gunshots and ultimately ran from the store. He went home and did not notify the police of the shooting. On cross-examination, defense counsel elicited that Harris admitted in a prior statement to police that he did not see a gun at all. He also admitted that he was currently on probation for burglary.
In his testimony, Townsend denied being present at the time of the shooting, claiming he had been told what had happened there by others. His trial testimony was at odds with a prior statement to police that he was present. Townsend's taped statement was admitted into evidence and played for the jury after a Gross hearing.
Townsend testified that he had been lifting weights after school and had taken a "sports bus" which did not leave the school until about 4:30 p.m. The day after the incident in Camden, Esterlin and Townsend got into a fight in the cafeteria of Pennsauken High School, which they attended. Townsend testified that he had given his prior statement that he was present at the shooting because the officer led him to believe that they could help him avoid disciplinary consequences at school arising from the fight in the cafeteria, which might otherwise interfere with his graduation that year.
In his prior statement, Townsend told the responding police officer that Esterlin had shot at him the day before as he stood at the corner of 41st and Westfield. Townsend gave the prior statement after the fight in the cafeteria. However, in the prior statement, as in his trial testimony, Townsend incongruously claimed that he had been at the high school lifting weights, and took the late bus, which would have placed him in the neighborhood after the initial incident, which occurred around 3:00 p.m.
Fabian Muniz, along with his girlfriend Lorena Grimaldo, and his friend Robert Agurs, had driven to a music and electronics store on the corner of 40th and Westfield in his blue Volkswagen Jetta. They were parked outside the store when they heard shots. They saw defendants run up to them. Defendants shoved over Agurs and various items that were on the back seat as they got into the car. Muniz testified that Jonathan ordered him to drive. Agurs and Muniz both testified that they saw Jonathan holding a gun near his waistband. Muniz stated that the gun was pointed at his back as he drove. Grimaldo, who was sitting in the front passenger seat, testified that she did not see the gun because she was too frightened to turn around and look, but that she heard the Spanish word for "gun."
After leaving the scene of the shooting, Muniz was instructed to drive back toward 41st and Westfield, at which point defendants rolled down the window and yelled something at what remained of the crowd. At that point, a green Grand Marquis began following the Jetta. When defendants realized they were being followed, they told Muniz to "try to dip them off so we'll be able to escape."
When the car passed a school bus and reached 36th street, defendants told Muniz to stop the car, they got out, and one began firing at the other car. Agurs testified that Jonathan fired at the other car. Muniz testified that it was Esterlin. The Grand Marquis backed up, turned around and drove away. There was testimony that a green Grand Marquis was owned by Luis Rolon Jr., but the State was unable to subpoena him as he was deceased.
Wilson, the school bus driver, testified that she heard the shots at 41st and Westfield and was driving the bus that the cars passed near 36th. She testified that she saw two men jump out of the blue car and face the other car, and then heard shots fired and heard a bullet hit the bus. She conceded that she did not actually see either defendant fire a gun. After the incident, she examined the bus and discovered a dent behind the driver's seat believed to be caused by a bullet.
Muniz, Grimaldo, and Agurs were shaken by what had happened, and after some delay, they notified the police. However, their testimony differed as to what they did and where they went immediately after the incident. Muniz and Agurs testified that the three then drove to Muniz's house to talk about what had happened and decide what to do next. Muniz testified that he spoke to his mother on the phone, but Agurs testified that Muniz's mother was not at home and that the three did not speak to anyone else. Muniz testified that he was worried about calling the police because of his immigration status. He also did not want the police to think that he had willfully participated in any way in the shootings.
Agurs testified that they knew someone would identify the car and trace it back to Muniz. Grimaldo testified that she, Muniz, and Agurs did not leave the scene, but discussed what to do in the parked car. The three decided to call police who met them on the scene (although the precise location was also disputed). An officer took audio-recorded statements of Muniz and Agurs. Grimaldo gave a formal statement on March 22, 2007.
Police recovered shell casings from the 36th Street scene, but not from the area near 41st and Westfield. No gun was recovered. The recovered casings came from a .38 caliber handgun. Evidence was elicited that Calero had used a .38 caliber handgun in a subsequent crime to which he pled guilty, and police had not obtained an analysis to determine if Calero's gun matched the casings.
The day after the shooting, Calero happened to meet Muniz, and assaulted him, inflicting multiple injuries. In the same recorded statement in which he accused defendants of the shooting at 41st and Westfield, Calero asserted that he attacked Muniz because he believed Muniz willingly served as the "getaway" driver for defendants the previous day. He rejected police suggestions that Muniz was coerced, claiming that Muniz was smiling when he drove defendants back to the area of the initial shooting. Calero also claimed that defendants would not have walked into his neighborhood, but would have arrived by car. Calero further recounted that defendants asserted, during the confrontation in the Chinese food store, that they had a car around the corner.
At trial, Calero denied that he had ever been shot at by either defendant, stating that Esterlin was "his boy" and that defendants were "friends, friends, friends, friends, friends." Calero claimed that he had been "beefing" with Fabian Muniz about an unrelated matter. Calero's prior recorded statement was played for the jury. The State also elicited proofs that Calero was incarcerated and that he was fearful of being known as a snitch.
Defense counsel unsuccessfully attempted to elicit on cross-examination that Calero was a member of the Crips street gang. In response to the State's objection, defense counsel argued that gang membership would tend to support a defense theory that Calero may have been the aggressor against defendants, with whom he was "beefing" after they beat up Harris. The court sustained the State's objection, finding the question was outside the scope of direct examination and not relevant.
Although defendants were not permitted at that point to identify Calero with the Crips, defense counsel were able to elicit later in the trial that Calero and others were members of a gang, controlled the territory at 41st and Westfield Avenue, and were at odds with defendants. The following was elicited during cross-examination of Harris:
Q. Now that area, Westfield Avenue, back in March of 2007 was that an area where the Torres brothers usually hung out?
A. What? At 41st and Westfield?
Q. No, because that was your guys territory, correct?
Q. And their coming around that area would have been dangerous because your gang would've retaliated against them, correct?
Q. Callero [sic], et cetera?
Q. You were mad that they had jumped ...