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State of New Jersey v. Esterlin M. Torres and Jonathan Torres

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 14, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ESTERLIN M. TORRES AND JONATHAN TORRES, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-09-3185.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued(A-4500-09)/Submitted(A-4509-09)

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.

I.

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.

A.

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.

B.

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.

C.

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. Yes.

A. No.

Q. No, because that was your guys territory, correct?

A. Yes.

Q. And their coming around that area would have been dangerous because your gang would've retaliated against them, correct?

A. Yes.

Q. Callero [sic], et cetera?

A. Yes.

Q. You were mad that they had jumped you, correct?

A. Yes.

Lawson also testified that Rolon was part of the gang from the neighborhood. Later in the trial, without the State's objection, a police witness testified that Calero described himself as a member of the Crips street gang.

Muniz also testified that he had been approached by Jonathan's defense attorney at the time and defendants' father about making a statement that would soften his prior report to the police that defendants forced him to drive them from the scene of the initial shooting. Muniz testified that defendants' father offered to help him with his medical bills from Calero's assault if he made a statement and everything "went OK with the case." On May 20, 2008 Muniz appeared at the attorney's office and gave a statement that he told defendants they could get in his car. On the stand, Muniz denied that he had invited defendants into his car, explaining that he felt pressured.

However, Muniz admitted on cross-examination that he knew that if he told police he drove defendants without being threatened, he might be charged with a crime. Muniz also admitted that he knew defendants from the neighborhood before March 19.

Following his arrest on March 21, 2007, Jonathan was taken to Virtua Hospital to be cleared for remand to a juvenile facility. An officer testified that while attempting to transport from the hospital to the detention facility, Jonathan ran from the officer. He eluded capture for several months before he was apprehended.

The only defense witness was Jonathan's former attorney, who denied that he pressured Muniz to give his statement.

D.

In connection with the shootings, the indictment charged defendants with two counts of attempted murder of Harris and Calero, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3a(1); three counts of second-degree aggravated assault of Harris, Calero and Townsend, N.J.S.A. 2C:12-1b(1); and three counts of fourth-degree aggravated assault of Harris, Calero and Townsend, N.J.S.A. 2C:12-1b(4). Regarding defendants' flight from the scene of the initial shooting, the indictment charged defendants with first-degree carjacking, N.J.S.A. 2C:15-2, and three counts of first- degree kidnapping involving the three occupants, N.J.S.A. 2C:13-1b(1).

Regarding the alleged shooting at the vehicle that pursued defendants, the indictment charged defendants with first-degree attempted murder of the car's driver, Rolon, N.J.S.A. 2C:5-1, N.J.S.A. 2C:11-3(a)(1), and second-degree and fourth-degree aggravated assault of Rolon. N.J.S.A. 2C:12-1b(1), -1b(4). The indictment also charged defendants with fourth-degree aggravated assault of the bus driver and the twelve children. N.J.S.A. 2C:12-1b(4). Both defendants were also charged with third-degree unlawful possession of a weapon and second-degree possession of a weapon for an unlawful purpose. N.J.S.A. 2C:39-5b and N.J.S.A. 2C:39-4a. Finally, Jonathan was individually charged with escape.

After the close of the State's case, the court dismissed the three counts related to Rolon. The jury acquitted defendants as to all counts pertaining specifically to Harris and Townsend. The jury convicted defendants of second-degree and fourth-degree aggravated assault of Calero, but acquitted them of attempted murder of Calero. The jury convicted defendants of lesser-included second-degree kidnapping of the three occupants of the vehicle, but acquitted defendants of carjacking and first-degree kidnapping. The jury also returned verdicts of guilty as to the fourth-degree aggravated assault of the bus driver and her passengers, the weapons offenses, and Jonathan's escape.

The court sentenced Esterlin to a total term of incarceration of twenty-four years and six months with nineteen years, three months, twenty-four days parole ineligibility and six years parole supervision upon release, and sentenced Jonathan to twenty-nine years and six months imprisonment with twenty-one years, nine months, and twenty-four days parole ineligibility. The court found four distinct criminal incidents: the shooting at Calero, the kidnapping of Muniz, Agurs and Grimaldo; the assault on the bus driver and the children; and possession of a weapon. The sentences connected with each incident ran concurrent to other sentences connected with the same incident, but consecutive to the sentences of the other three incidents.

Regarding the assault on Calero, the court merged possession of a weapon for an unlawful purpose and fourth-degree aggravated assault into second-degree aggravated assault and sentenced defendants to eight years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with 85% parole ineligibility and three years of parole supervision upon release. For the second-degree kidnapping of Muniz, Grimaldo, and Agurs, the court sentenced defendants to concurrent terms of ten years subject to NERA with 85% parole ineligibility and 3 years parole supervision upon release. For the fourth-degree assault on the bus driver and the school children, the court imposed sentences of eighteen months imprisonment with eighteen months parole ineligibility. The court imposed sentences of five years imprisonment, with two years and six months of parole ineligibility on the unlawful possession of a weapon charge. Finally, Jonathan received a consecutive sentence of five years imprisonment, with two years and six months parole ineligibility for escape.

Defendants each appealed and filed separate briefs. With one exception noted below, they raise the same issues on appeal, although their point headings vary slightly. Language included only in Jonathan's point headings is underlined:

I. DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT REPEATEDLY PERMITTED THE STATE TO CROSS-EXAMINE ITS OWN WITNESSES WITH PRIOR INCONSISTENT STATEMENTS, IN VIOLATION OF STATE V. GROSS, 121 N.J. 1 (1990).

A. DEFENDANT WAS PREJUDICED BY ADMISSION OF PRIOR INCONSISTENT STATEMENT OF JOSHUA CALERO.

B. DEFENDANT WAS PREJUDICED BY ADMISSION OF PRIOR INCONSISTENT STATEMENT OF QUORAN TOWNSEND.

C. DEFENDANT WAS PREJUDICED BY ADMISSION OF PRIOR INCONSISTENT STATEMENT OF ROBERT AGURS.

D. DEFENDANT WAS PREJUDICED BY ADMISSION OF PRIOR INCONSISTENT STATEMENT OF LORENA GRIMALDO.

II. DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN DEFENSE COUNSEL WAS PRECLUDED FROM CROSS-EXAMINING CALERO ABOUT HIS GANG AFFILIATION (2T 67-24 to 68-18).

III. DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT PERMITTED SEVERAL HEARSAY STATEMENTS TO BE USED AGAINST THEM.

A. THE TRIAL COURT ERRED IN PERMITTING AN OFFICER TO TESTIFY TO STATEMENTS MADE TO HIM AFTER THE ALLEGED CRIME HAD BEEN COMMITTED; THE COURT IMPROPERLY RULED THAT THE STATEMENTS CONSISTED OF THE EXCITED UTTERANCE EXCEPTION TO THE HEARSAY RULE.

B. ADDITIONAL HEARSAY EVIDENCE CONTRIBUTED TO A CUMULATIVE EFFECT RESULTING IN PREJUDICE TO THE DEFENDANTS.

C. THE HEARSAY ERRORS WERE NOT HARMLESS BECAUSE THE TESTIMONY INFRINGED UPON THE JURY'S FUNCTION TO DETERMINE THE ULTIMATE ISSUE OF WHETHER THE DEFENDANTS WERE GUILTY OF KIDNAPPING MUNIZ, GRIMALDO AND AGURS.

IV. DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE STATE, IN EXAMINING ITS OWN WITNESS, INTRODUCED EXTRINSIC EVIDENCE OF ALLEGED BAD ACTS OF PERSONS OTHER THAN THE DEFENDANT WHO APPROACHED A STATE'S WITNESS TO OBTAIN A STATEMENT FROM HIM THAT RESULTED IN HIS GIVING FACTS THAT CONTRADICTED HIS INITIAL STATEMENT TO POLICE.

V. DEFENDANTS WERE DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT GAVE IMPROPER JURY INSTRUCTIONS WHEN IT FORCED THE JURY TO MAKE SEQUENTIAL FINDINGS ON THE KIDNAPPING CHARGES AND THE LESSER-INCLUDED OFFENSES OF KIDNAPPING.

VI. ALL THREE VERDICTS OF GUILTY ON SECOND-DEGREE KIDNAPPING WERE AGAINST THE WEIGHT OF THE EVIDENCE; THERE WAS INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT ANY OF THE VICTIMS WERE TAKEN A SUBSTANTIAL DISTANCE OR WERE CONFINED FOR A SUBSTANTIAL PERIOD OF TIME. (NOT RAISED BELOW).

Only Jonathan raised on appeal the following point:

VII. IMPOSITION OF THE MAXIMUM SENTENCES OF TWO TERMS OF EIGHTEEN MONTHS ON TWO FOURTH DEGREE CRIMES, TWO TERMS OF FIVE YEARS/TWO AND ONE-HALF YEARS WITHOUT PAROLE ON TWO THIRD DEGREE CRIMES, EIGHT YEARS/85% NO PAROLE ON ONE SECOND-DEGREE CONVICTION, AND TEN (10) YEARS ON EACH SECOND-DEGREE KIDNAPPING, ALTHOUGH RUNNING CONCURRENTLY WITH EACH OTHER, FOR A TOTAL AGGREGATE SENTENCE OF 29 YEARS 6 MONTHS WITH 21 YEARS,

9 MONTHS AND 24 DAYS WITHOUT PAROLE, WHERE DEFENDANT HAS NO PRIOR ADULT RECORD AND WAS

16 YEARS OF AGE AT THE TIME OF THE OFFENSE, WERE EXCESSIVE.

Both defendants raised this final point:*fn3

VIII. THE STATE'S USE OF THE PHRASE 'AND/OR' IN THE KIDNAPING COUNTS OF THE INDICTMENT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO BE ADVISED OF THE

CHARGES AGAINST HIM AND TO A FAIR TRIAL. (NOT RAISED BELOW).

II.

A.

We reject defendants' argument that the court deprived them of a fair trial by failing to comply with Gross, supra, regarding the admissibility of prior inconsistent statements. A prior inconsistent statement of a testifying witness, although hearsay, is admissible "provided it would have been admissible if made by the declarant while testifying and the statement . . . is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613." N.J.R.E. 803(a). In turn, N.J.R.E. 613 provides the prior statement need not be shown to the witness before being asked about it, and extrinsic evidence of a prior statement may be excluded unless the witness had the chance to explain or deny the statement.

When a party wants to use a prior inconsistent statement of its own witness, as the State did in this case, the proponent of the prior statement must satisfy additional requirements.

[W]hen the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it . . . is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability. .

[N.J.R.E. 803(a)(1).]

In determining "circumstances establishing . . . reliability," the Court in Gross, supra, identified fifteen factors that a court may consider in a preliminary hearing under N.J.R.E. 104:

(1) the declarant's connection to and interest in the matter reported in the outof-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons,

(7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's handwriting,

(9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence. [Id. at 10 (quoting State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div. 1987)).]

In this case, the court conducted testimonial hearings pursuant to N.J.R.E. 104(a) to determine the admissibility of Calero's and Townsend's prior statements under N.J.R.E. 803(a) and Gross, supra. The court heard testimony from Calero and Townsend regarding their respective statements, and viewed the video-taped statements. The court determined that Calero's statement met the Gross standards for reliability, finding that although Calero was in custody, Calero appeared lucid, received his Miranda*fn4 warnings, was in good physical condition, freely admitted incriminating evidence (including drug use and culpability for the assault on Muniz), did not appear afraid, and was not promised anything in return for his statement. The court also found that the reason Calero gave on the stand for his prior statement did not make sense.

Likewise, the court held that Townsend's statement was reliable and admissible. The court noted that Townsend was in custody for assault. The court recognized that Townsend's timeline differed from that of other witnesses, and Townsend also had a motive to cooperate to avoid expulsion from school. However, there was no definitive evidence of when the sports bus left the school, Townsend did not appear to be pressured, he appeared to be thinking clearly, free of the influence of intoxicants, he "sounded like he was in control" during the interview, and he was Mirandized.

The court also found implausible Townsend's explanation that he specifically lied about being present at the shooting in order to curry favor with authorities, which would help him stay in school. The court questioned "how it makes it any better if he says I was there and they shot at me as opposed to him saying I wasn't there but I got in a fight with this kid because I was picking up for the other people in my neighborhood."

Our scope of review of the court's evidentiary decisions are limited. "Considerable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998). Consequently, we will disturb an evidentiary ruling only if there has been a "clear error in judgment" or a ruling "so wide of the mark that a manifest denial of justice resulted." Ibid. (citations omitted). Moreover, the court's factual findings from a Rule 104 hearing are entitled to deference. State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

Having carefully reviewed the record in light of that standard of review, we discern no error. The judge carefully considered applicable Gross factors and reached decisions grounded in the Rule 104 hearing record. Indeed, defendants chose not to include in the appendix on appeal the video-taped interviews upon which the court relied. Thus, we have no basis to review the court's findings regarding Calero's and Townsend's demeanor and aspects of the interrogation not evident from the cold transcripts before us.

Moreover, as the jury ultimately acquitted defendants of the counts related to Townsend, it is likely the jury was unpersuaded that Townsend was present during the shooting. Consequently, the admission of Townsend's prior inconsistent statement was harmless. See State v. Spruell, 121 N.J. 32, 35 (1990) (determining whether admission of custodial suspect's prior inconsistent statement without required reliability hearing is harmless error requires fact-sensitive inquiry).

Defendants also argue that it was error for the court to allow the State to confront Agurs with a prior statement that one of the defendants said "keep on moving or else." They also argue that a prior inconsistent statement of Grimaldo was erroneously admitted into evidence. We disagree.

Agurs had denied on the stand that defendants verbally threatened the passengers. He testified that a defendant said, "Keep it moving," but not "or else." He persisted in that assertion, and testified that his prior statement was erroneously recorded. Although Agurs testified that neither defendant threatened him or the other passengers with a gun, he also stated that defendants directed him to move over, and that he complied "[b]ecause [Jonathan] had a gun in his hand, I was scared."

We perceive no error with respect to these aspects of Agur's examination, as the State did not seek to introduce his prior statement. Moreover, defense counsel did not object to the use of Agurs's prior statement. Consequently, even if there were error, it was not "clearly capable of producing an unjust result". R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971).

Turning to Grimaldo's direct examination, she could not recall whether a defendant stated he had shot a gun before entering the car. She was asked to read her prior statement, and then she confirmed that she heard a defendant say he "missed or . . . should have aimed better." She recalled defendants telling Muniz "where to drive and where to go."

We perceive no error, let alone plain error. Defense counsel registered no objection, and Grimaldo's prior statement was not admitted into evidence. Rather, the State used the statement to refresh Grimaldo's recollection, after establishing that Grimaldo was in a position to hear what was said in Muniz's car, but did not initially remember any statement by defendants regarding gun usage. See N.J.R.E. 612; State v. Williams, 226 N.J. Super. 94, 103-4 (App. Div. 1988) (to refresh recollection, proponent must establish impaired memory).

B.

We are also unpersuaded by defendants' argument that they were denied a fair trial because the court unduly restricted the scope of cross-examination, specifically regarding Calero's alleged membership in the Crips street gang, and the court erroneously allowed the State to introduce various hearsay statements.

We recognize that "[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974). However, the trial court is vested with the power to define the scope of cross-examination within its "sound discretion" and "[w]e will not interfere with the trial judge's authority . . . 'unless clear error and prejudice are shown.'" State v. Messino, 378 N.J. Super. 559, 583 (App. Div.) (quoting State v. Gaikwad, 349 N.J. Super. 62, 86 (App. Div. 2002)), certif. denied, 185 N.J. 297 (2005).

We may differ with the trial court's determination that Calero's gang involvement was both irrelevant and outside the scope of cross-examination. However, no prejudice was shown here. Defendants were ultimately able to establish, through a police witness, that Calero was a self-described member of the Crips, and, through Harris, that Calero's and Harris's gang was antagonistic toward defendants. Thus, defendants argued to the jury that Calero, rather than defendants, may have been the shooter, and defendants' flight was a flight to safety, not a flight from their commission of a crime.

We turn next to the claimed errors in admitting various hearsay statements. Defendants argue that the court erred in permitting: (1) a police witness to testify what Muniz, Agurs and Grimaldo told him after the incident; (2) a police witness's testimony that Muniz and Agurs told him they were afraid to testify in court against defendants; (3) Townsend's testimony that "some kids" had told him that Esterlin shot at them the day before on Westfield; (4) a police sergeant's testimony that Calero reported that Esterlin asked him to sign an affidavit denying defendants' involvement in the shooting; and (5) Muniz's testimony that defendants' father offered to help him with his medical bills if he provided a helpful statement. Defendants argue that this latter testimony should also have been excluded as evidence of a prior wrong under N.J.R.E. 404(b). We are unpersuaded, and address these points in turn.

The court ruled that the hearsay statements of Muniz, Agurs and Grimaldo to the officer shortly after the shooting were excited utterances under N.J.R.E. 803(c)(2). Based on the officer's testimony that the out-of-court declarants had waved down his car and appeared excited and emotional, it was within the court's discretion to rule that the three were still in the sway of excitement, and did not have an opportunity to fabricate or deliberate. Ibid.; see State v. Branch, 182 N.J. 338, 364-65 (2005) (setting forth factors to determine whether out-of-court declarant had opportunity to fabricate or deliberate); State v. Buda, 195 N.J. 278, 294 (2008) (trial court's evidentiary decision reviewed under an abuse of discretion standard).*fn5

Concededly, it was later established, in the subsequent testimony of Muniz, Agurs, and Grimaldo, that the three had ample time to fabricate or deliberate. According to Muniz's version, for example, they drove to his house after the incident to contemplate what to do and say. Agurs conceded that he, Muniz and Grimaldo considered the consequences of reporting what had happened, mindful that they did not want to be perceived as taking sides in a dispute because it might be personally dangerous for the three of them. In short, the three not only had time to deliberate, but did so, placing them outside the scope of the excited utterance rule.

Conceivably, defense counsel could have asked the court to strike the hearsay statements of Muniz, Agurs and Grimaldo, which had been recounted by the police witness, based on the three victims' in-court testimony, which demonstrated that the hearsay statements did not qualify as excited utterances. However, counsel chose not to do so. Nor did defendants suffer significant prejudice from the hearsay, as Muniz, Agurs and Grimaldo generally testified in conformity with the hearsay statements reported by the police witness. Therefore, the admission of the hearsay statements did not deny defendants a fair trial.

We also find no error in permitting a police witness to testify that Muniz had expressed concerns for his safety and that the officer transported Harris to court to satisfy his "comfort level."*fn6 The information was relevant, as the State argued at trial, because defense counsel opened the door to this area of inquiry by eliciting from Muniz and Harris that they were escorted to court, implying that the escort amounted to favorable treatment. The officer's testimony regarding Harris was not hearsay at all. It did not actually present Harris's out-of-court statement. Rather, the officer testified regarding his own motivation in escorting Harris.

Muniz's out-of-court statement that he was concerned for his safety was not offered to prove the truth of the statement - that Muniz was actually concerned - but to explain why police gave Muniz an escort. In any event, the statement was admissible for its truth because it was a statement of Muniz's "then existing state of mind, emotion [or] sensation," N.J.R.E. 803(c)(3), which was relevant to the issue defendants raised about the police escort provided to Muniz. See State v. McLaughlin, 205 N.J. 185, 206 (2011) (state-of-mind evidence of victim admissible if the declarant's state-of-mind has been placed in issue).

Nor was Muniz's statement unduly prejudicial. The testimony did not identify whom Muniz feared, although Muniz's general concern was not unfounded. Crediting his prior statements, he may have feared defendants, who forced him to drive from the scene of a shooting, or Calero, the alleged victim of the shooting who assaulted Muniz the next day, or Muniz may have been scared of all of them, or others. The fear-of-testifying evidence was not offered to prove defendants' motive. Cf. State v. Calleia, 206 N.J. 274, 295 (2011) ("Without more, a victim's fear of a defendant is not probative of a defendant's motive."). Rather, it was offered to demonstrate that Muniz's escort to court was not favorable treatment.

Turning to Townsend's hearsay statement, Townsend stated that "some kids" told him Esterlin shot at his friends in response to the prosecutor's question why Townsend got into a fight with Esterlin. Thus, it was presented not for the truth of the matter asserted, but as the fact motivating Townsend to fight Esterlin. The State attempted to prove that Townsend did not learn of the shooting through "some kids," but was present and was assaulted along with Harris and Calero. In any event, defendants did not object to the hearsay statements of the unnamed "kids." Applying a plain error analysis, the statement was not capable of causing an unjust result, particularly because the jury acquitted defendants of assaulting Townsend.

We are unaware of an exception to the hearsay rule that would have allowed a police sergeant to recount Calero's statement that Esterlin asked him to provide a favorable statement. The State argued that the defense opened the door to this line of questioning when Calero was cross-examined about whether defendants had pressured him to change his story. However, that argument addresses the relevance of the hearsay, not its compliance with an exception to the hearsay rule. Nonetheless, defense counsel did not object to this line of questioning.*fn7 Applying a plain error analysis, we are unpersuaded that the questioning would lead to an unjust result because the out-of-court declaration that Esterlin sought an exculpatory statement, without an allegation of a threat or promise, was not prejudicial.

Lastly, we address Muniz's testimony that: defendants' father visited Muniz at the store where he worked; the father offered to help Muniz pay his medical bills (from the assault by Calero) if the case concluded favorably for his sons; Muniz met with prior defense counsel to give a statement, but he felt threatened by defendants' father and was not completely truthful. Defendants argue that this testimony should have been excluded as evidence of "other crimes, wrongs or acts" of defendants, N.J.R.E. 404(b), in the absence of a preliminary hearing and findings pursuant to State v. Cofield, 127 N.J. 328, 338 (1992). Although Muniz's testimony pertained to defendants' father, not them, defense counsel argued at trial that "the father's alleged bad acts [were] not admissible against the sons." Defendants argue before us that Muniz's testimony improperly implied that defendants intended, through their father, to coerce false testimony.

We discern no error, notwithstanding that, arguably, Muniz's testimony supported a conclusion that defendants' father committed a crime or wrong. Although Muniz did not claim that defendants' father expressly solicited false testimony, one may have concluded that he implicitly requested favorable testimony, regardless of its truthfulness, by conditioning help on a favorable trial outcome. See State v. Foglia, 415 N.J. Super. 106, 122-23 (App. Div.) (noting that prior act need not satisfy elements of a crime to fall within N.J.R.E. 404(b)), certif. denied, 205 N.J. 15 (2010); cf. N.J.S.A. 2C:28-5(a) (tampering with witness requires, pertinent to this case, proof of knowing attempt to induce witness to testify falsely or to withhold testimony).

However, we reject defendants' argument that their father's acts were imputable to them, as there was no evidence that the sons directed their father to act. Consequently, the Cofield four-part test does not apply here, as the testimony did not pertain to crimes or wrongs of defendants. Other crimes or wrongs evidence pertaining to a non-party witness does not implicate the danger of finding a defendant guilty simply because he has committed another crime or wrong in the past. Cf. State v. Garfole, 76 N.J. 445, 452 (1978) (less stringent standard for defensive use of other-crimes evidence that does not pose risk of prejudice to defendant); State v. DeMarco, 387 N.J. Super. 506, 520 (App. Div. 2006) (defensive use of other crimes evidence must pass a simple relevancy test). Moreover, the State did not offer evidence of defendants' father's actions to prove a fact about the father's character or motives.

Rather, it offered the evidence to prove why Muniz's statement to defendants' former attorney differed from his prior statements to police and his trial testimony.

C.

We also reject defendants' argument that the court erred in its instruction on kidnapping and lesser-included offenses. Defendants argue that the court committed error by requiring the jury to decide first whether to convict on charges of first or second degree kidnapping, and then, if necessary, to decide whether to convict on the offense of criminal restraint, and if necessary, false imprisonment. We disagree.

First, we note that defense counsel did not clearly raise this objection at trial. In the charge conference, the trial judge proposed to read the model charge on kidnapping, which describes the elements of second degree kidnapping, informs the jury of the additional factors that elevate the crime to the first degree, and advises the jury that if it finds those additional factors, it must find a defendant guilty of first-degree kidnapping, and if it does not find those additional factors present, but all other factors present, it must find defendant guilty of second-degree kidnapping. The court proposed to include criminal restraint and false imprisonment as lesser included offenses, requiring the reading of the charges for those offenses. Defense counsel concurred during the charge conference.

However, defense counsel raised an objection to the State's summation, wherein the prosecutor explained the court would tell the jury, "don't look at those lesser included charges unless you find the defendants not guilty of the original charge." Defense counsel objected and argued:

The prosecutor, when discussing lesser included offenses told the jury that you're going to tell them to vote on the main charge and then deal with the lesser sequentially if they find them not guilty. I believe the model jury charge, and what you're going to tell them, is that they have to take all the charges as a whole, they are not to deal with them sequentially. And I believe there's case law that says it's improper to tell them to deal with them sequentially. . . . I believe it's part of the model charge - you're going to tell them not to deal with them sequentially.

The trial judge responded that he would instruct the jury to consider the charge as a whole, and not over emphasize any particular charge. But, he would also instruct the jury, "by virtue of the charge itself they can't reach the lesser included until they deal with the primary indicted charge."

As delivered, the trial court followed the model jury charge for lesser included offenses almost verbatim. Model Jury Charge (Criminal), "Lesser Included Offenses" (2002). The court also adhered to the model jury charge on kidnapping. Model Jury Charge (Criminal), "Kidnapping 2C:13-1b(1) to (3)" (2007). The court then advised the jury that if it found defendants not guilty of first and second degree kidnapping, it should consider criminal restraint. The court defined criminal restraint by following the model charge Model Jury Charge (Criminal), "Criminal Restraint" (2000). The court advised the jury that if it found defendants not guilty of criminal restraint, the jury should turn to the lesser included offense of false imprisonment. Model Jury Charge (Criminal), "False Imprisonment - Lesser Included" (2005). At the conclusion of the charge on the substantive offenses, defense counsel stated, "I renew my objection to the sequential instruction." Counsel did not propose an alternative charge, or suggest how the model charge should be modified to address his objection.

Accurate and understandable jury instructions are essential to ensure a fair criminal trial and the trial court has "an absolute duty to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). In examining jury charges, the reviewing court must look at the instructions as a whole. State v. Heslop, 135 N.J. 318, 324 (1994). The Supreme Court has noted that errors in jury instructions "are poor candidates for rehabilitation under the harmless error theory." State v. Harrington, 310 N.J. Super. 272, 277 (1998) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).

In urging us to find error in the sequential model charge on kidnapping, defendants rely on State v. Coyle, 119 N.J. 194 (1990) and State v. Mejia, 141 N.J. 475 (1995). In Coyle, supra, the Court found error in sequentially treating passion/provocation manslaughter as a lesser-included offense of purposeful murder. Coyle, supra, 119 N.J. at 221-22. In Mejia, the court found error in sequentially treating serious-bodily-injury murder as a lesser-included of purposeful murder. Mejia, supra, 141 N.J. at 484-85. In both cases, the Court held that sequential treatment of the alternatives - passion/provocation manslaughter in Coyle and serious-bodily-injury murder in Mejia - predisposed the jury to convict of the most serious charge of purposeful murder. See Mejia, supra, 141 N.J. at 484 ("One problem with a sequential charge is that it may cause a jury that believes a defendant guilty of something to convict on the first and most serious charge.").

Defendants' reliance on Coyle and Mejia is misplaced for two reasons. First, defendants do not complain that the charge here encouraged the jury to convict of "the first and most serious charge;" rather, they argue that the charge encouraged the jury to convict of the second most serious charge, the lesser included second-degree kidnapping. Defendants argue that the court should have fashioned a charge that "prevents [the] jury from compromising from first degree kidnapping to second degree kidnapping if they are not sure whether or not kidnapping has been proved beyond reasonable doubt."

Second, Coyle and Mejia addressed an infirmity in the charges in those cases that is not present here. The Court in Coyle and Mejia disapproved of sequential treatment of offenses - passion/provocation manslaughter and serious-bodily-injury murder - which were not truly lesser included offenses of the most serious charge. By contrast, second degree kidnapping is, strictly, a lesser included of first degree kidnapping. It includes essential elements of first degree kidnapping, and no elements not applicable to first degree kidnapping. *fn8

Where the court deals with true lesser included offenses, a sequential charge is appropriate.

Juries are consistently told not to consider the lesser-included offenses unless they first find the defendant not guilty of the greater offense. There is nothing inherently wrong with a sequential charge.

Such charges assure that a jury renders "a just verdict by applying the facts to the law as it is charged. . . . [S]equential charges usually provide a framework for orderly deliberations. [Coyle, supra, 119 N.J. at 223 (internal citations omitted)].

Defendants also argue, based on an excerpt from the charge, that the judge erroneously distinguished between the kidnapping charges and the other lesser included offenses, thereby channeling the jury toward a guilty verdict on one of the two forms of kidnapping. We disagree. Defendants mischaracterize the court's jury instruction. The court clarified when it reviewed the verdict sheets that there were four offenses to be considered in sequence: first-degree kidnapping, second-degree kidnapping, criminal restraint, and false imprisonment.

[A]s I instructed you . . . with respect to the matters where there are lesser included charges, and that would be with respect to the litany of kidnapping down to first degree, then down to second, down to criminal restraint, then down to false imprisonment, that they be taken in that order when you take them up.

Although adherence to the model charge entailed a unified discussion of both kidnapping charges before reaching the other two offenses, we are unpersuaded that the court's instruction unduly encouraged a guilty verdict on kidnapping. In sum, we find neither error nor plain error in the sequential charge.

Defendants also argue that the instructions on accomplice liability were defective as they did not make clear that it was possible for the jury to convict the principal actor of an offense at a higher degree than that of the accomplice. This objection was not raised before the trial court. Therefore, a plain error analysis applies.

Although the charge may have been more specific in this regard, the charge did not misstate the law, and did not have the capacity to cause an unjust result. See State v. La France, 117 N.J. 583, 594 (1990) (finding no plain error, stating, "The charge might have been better but it was not flawed."). The trial judge reiterated that to convict based on accomplice liability, the State had to prove all of the elements of the crime as well as the accomplice's intent. Therefore, the court effectively instructed the jury that it was not enough that a principal actor committed an offense of a certain degree; the accomplice himself needed to satisfy all the essential elements in order for the jury to convict him for an offense of that same degree. The judge's instructions closely tracked the model jury charge on accomplice liability. We discern no error.

D.

We turn to defendants' remaining points. We shall not address the merits of defendants' argument that the jury verdict was against the weight of the evidence, as defendants did not seek a new trial under Rule 3:20-1. See R. 2:10-1 ("[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court."). The rule recognizes that the trial judge, who observed the witnesses' demeanor and developed a feel for the case, is best situated to consider the sufficiency of the evidence. See Dolson v. Anastasia, 55 N.J. 2, 7 (1969).

We also find no merit in defendants' argument, which was not raised before the trial court, that the State's use of the phrase "and/or" in the kidnapping counts of the indictment denied them their right to be advised of the charges against them. The Criminal Code states, in relevant part, "A person is guilty of kidnapping if he unlawfully removes another . . . a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period. . . ." N.J.S.A. 2C:13-1b. The indictment alleged that defendants "did unlawfully remove [each victim] a substantial distance and/or did unlawfully confine [the victim] for a substantial period."

(emphasis added). Defendants were thereby informed that the State intended to present evidence on both asportation and confinement, which the State did. If the indictment "alleges all the essential facts of the crime, the charge is sufficiently stated and the indictment should not be dismissed unless its insufficiency is 'palpable.'" State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994)(citing State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984).*fn9

We also shall not disturb the court's sentence of Jonathan. The judge articulated a proper basis for imposing consecutive sentences in accordance with the principles of 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). We are also satisfied that the judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record. The judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and the sentence imposed is not manifestly excessive or unduly punitive and it does not constitute a mistaken exercise of discretion. State v. Pierce, 188 N.J. 155, 169-70 (2006); State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-66 (1984).

Affirmed.


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