April 13, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JESUS A. ARAIZA-NAVA-AVILA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-11-1631.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012 -
Before Judges Graves and Koblitz.
Defendant Jesus A. "Chaparro" Araiza-Nava-Avila appeals a judgment of conviction entered on October 9, 2009. After a jury trial, he was convicted of the first two counts of Burlington County Indictment No. 07-11-1631 charging murder, N.J.S.A. 2C:11-3a(1) or (2) (count one), and second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two).*fn1 Defendant was sentenced on count one to thirty years in prison with a mandatory minimum of thirty years. On count two, he received a consecutive sentence of five years with 85% to be served without parole, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After reviewing the record in light of the contentions advanced on appeal, we affirm.
The State's evidence revealed the following facts. Defendant and Autumn Moyer lived together and had a baby girl. Their relationship ended and Moyer began another relationship with Gilbert Parra. On August 31, 2007, in a telephone conversation, defendant threatened to assault Moyer. Parra then took the phone from Moyer and told defendant that his child referred to Parra as "daddy" now. During the early morning hours of September 1, 2007, defendant and his uncle went to the house of Moyer's family. Defendant called and spoke to Moyer's sister. He asked her to come outside. She complied, but upon seeing defendant, ran back into the house and told her sister and Parra of defendant's presence in front of the home.
Parra and Moyer then went outside. Shortly thereafter, both were shot. Parra was killed and Moyer was shot in the ankle. Immediately after the shootings, Moyer told her family that "Chaparro shot me" and "He shot me, he shot Gilbert, why did he shoot us, why did he shoot me?" Moyer testified at trial that defendant ran from the bushes and shot Parra first. He then told her in Spanish that it was her turn before shooting her in the ankle. She also testified about prior threats made against her by defendant.
Shortly after the shootings, police stopped a pick-up truck in which defendant and his uncle were traveling with two other individuals. The uncle was bare-chested and appeared intoxicated. Defendant was wearing a green shirt. Police later found a pair of gloves and a .38 caliber revolver containing six spent cartridges in the truck. Forensic investigation revealed that the gun fired the bullets that killed Parra. No fingerprints were found on the gun, but defendant's DNA was found on the gloves. Defendant's cell phone records indicated he called the victim's residence fourteen times that night.
The defense presented a neighbor who testified to seeing some men at 3 a.m. and that he heard and saw gunshots. He then saw three or four men leave the area in a truck. He initially told the police that the shooter was wearing a white shirt, but at trial he stated that he thought the shooter was wearing a green shirt.
Moyer's brother, Jonathan,*fn2 testified that defendant's uncle, Rafael Nava-Avila, who appeared intoxicated, had knocked on their door and asked for a beer. Jonathan sent him away. Shortly thereafter, Parra was killed. Assuming it to be true, Jonathan told the police that Nava-Avila had killed Parra.
The final witness called by the defense was Burlington County Prosecutor's Detective Jayson Abadia, who testified that he interviewed Nava-Avila in Spanish on the date of the incident. Abadia indicated that Nava-Avila was extremely intoxicated, to the point that he urinated on himself twice during the interview. In response to a question posed by defense counsel, Abadia testified to learning later in the investigation that Jonathan had stated Nava-Avila was the shooter. Abadia testified, "But what occurred that night, the information that was relayed that evening, we were confident based on the investigation that the defendant was the trigger man, was the shooter."
Defendant did not testify and his counsel argued in summation that the evidence pointed to Nava-Avila as the shooter.
Defendant raises the following issues on appeal:
POINT I: THE COURT ORDERED SEQUENTIAL DELIBERATIONS WHICH EFFECTIVELY PREVENTED THE JURY'S CONSIDERATION OF PASSION/PROVOCATION MURDER. (Not Raised Below)
POINT II: THE COURT ERRED IN ADMITTING PRIOR THREATS ALLEGEDLY MADE BY THE DEFENDANT BECAUSE THEY WERE HIGHLY PREJUDICIAL AND SHOULD HAVE BEEN EXCLUDED UNDER RULE 403. POINT III: THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT FAILED, SUA SPONTE, TO STRIKE THE TESTIMONY OF DETECTIVE ABADIA IN WHICH HE STATED THAT THE DEFENDANT WAS GUILTY OF THE SHOOTING. (Not Raised Below) POINT IV: THE COURT FAILED TO INSTRUCT THE JURY ON THE INHERENT UNRELIABILITY OF ORAL STATEMENTS ALLEGEDLY MADE BY THE DEFENDANT. (Not Raised Below)
In Point I of his brief, defendant asserts for the first time on appeal that the trial judge improperly directed the jury to sequentially consider the charges of murder and aggravated manslaughter. See State v Coyle, 119 N.J. 194, 223-24 (1990).
In Coyle, a capital-murder appeal in which the defendant admitted killing the victim, the Court stated:
In murder cases in which there is evidence of passion/provocation, however, a court must take additional care in issuing clear instructions. In those cases a sequential charge coupled with an instruction that inadequately defines the elements of the greater offense, namely, murder, can mislead the jury. Such a charge is inadequate. In this case the failure to heed defendant's objection to the charge and to reinstruct the jury so greatly risked confusion as to amount to error. To avoid repetition of that error, we suggest that trial courts instruct jurors in the initial charge on murder about the effect of passion/provocation on an otherwise-intentional killing. [Id.]
Unlike in Coyle, defense counsel did not raise the mitigation defense of passion/provocation, nor did she admit that her client killed Parra. Also dissimilar from Coyle, the judge charged the jury regarding passion/provocation in her original charge on murder.
During her charge on murder, the trial judge instructed the jury as follows:
A person is guilty of murder if he, one, caused the victim's death . . . and, two, the defendant did so purposely or knowingly, and three, did not act in the heat of passion resulting from a reasonable provocation. If you find beyond a reasonable doubt that the defendant purposely or knowingly caused Gilbert Parra's death . . . and that he did not act in the heat of passion resulting from a reasonable provocation, defendant would be guilty of murder. If, however, you find that the defendant purposely or knowingly caused death . . . and that he did act in the heat of passion resulting from a reasonable provocation, defendant would be guilty of passion provocation manslaughter.
In order for you to find the defendant guilty of murder, the State is required to prove each of the following elements beyond a reasonable doubt: [o]ne, that the defendant caused Gilbert Parra's death . . . and, two, that the defendant did so purposely or knowingly and, three, that the defendant did not act in the heat of passion resulting from a reasonable provocation.
The judge also charged the jury about the four elements of passion/provocation manslaughter as suggested by the model jury charge in effect at the same time.*fn3 Model Charge on "Murder, Passion/Provocation and Aggravated/Reckless Manslaughter," revised May 4, 2009.
Defendant points out that the judge provided the jury with a sequential verdict sheet rather than the type of verdict sheet attached to the model jury charge for the first time in the 2011 amendment. Model Charge "Murder, Passion/Provocation and Aggravated/Reckless Manslaughter," revised June 13, 2011, pages 12 and 13; see also Judges Bench Manual for Capital Cases, Appendix G(2) (March 1, 1998). We agree with defendant that the amended verdict sheet, which presents the jury with the option of finding the defendant guilty of passion/provocation manslaughter before finding him guilty of murder, is preferable.
The use of the sequential verdict sheet in itself, however, does not constitute reversible error. See State v. Reese, 267 N.J. Super. 278 (App. Div. 1993) (affirming a capital-murder conviction because the court gave the proper murder instruction encompassing passion/provocation, even though the defendant's trial counsel objected to the sequential verdict sheet used by the court).
Defense counsel did not object to the verdict sheet or the jury charge at trial. Consequently, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result. . . ." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95, (2004); Macon, supra, 57 N.J. at 333; R. 2:10-2.
In discussing the sequential verdict sheet, the judge reminded the jury to remember her instructions regarding "the law concerning murder." The judge reiterated the need to find that defendant "did not act in the heat of passion resulting from a reasonable provocation." We do not find that the use of a sequential verdict sheet here constitutes plain error, especially in light of the substantial proofs submitted by the State.
In Point II of his brief, defendant maintains that the trial judge erred in allowing into evidence defendant's threats and exhibitions of jealousy towards Moyer between January and September 2007. After holding a N.J.R.E. 104 hearing, the judge allowed Moyer, her parents, sister and brother to testify to various threats made by defendant against Moyer and Parra. The judge, however, did not permit the State to produce much of the evidence it sought to introduce concerning defendant's controlling behavior. The judge also gave a limiting charge to the jury at the end of the trial regarding the threat evidence, indicating it could be used only to establish motive or intent, not to infer that defendant has "a tendency to commit crimes or is a bad person."
Defendant argues that some of these statements were inadmissible hearsay, as they were translated from Spanish to English by Moyer to family members or relayed to them immediately after a telephone conversation.*fn4 The judge ruled that these translations or relayed comments were excited utterances made by Moyer and both she and her family members could testify to their content. N.J.R.E. 803(c)(2). Because Moyer could testify to any threats made directly to her by defendant pursuant to N.J.R.E. 803(b)(1)(statement by party-opponent) and N.J.R.E. 803(c)(25) (statement against interest), the admission of the family member's testimony regarding those threats was cumulative.
Moyer's mother testified to being present when Moyer translated that defendant threatened to "beat the shit out of her." Moyer's sister testified that during arguments in front of her and over the phone, Moyer translated that defendant was threatening to kill Moyer. One threat involved the use of "something in the trunk of a car" against Moyer and any new boyfriends. On another occasion, Moyer told her sister that defendant threatened to kill her and Parra.
Moyer's father testified to seeing defendant peeking in the window of their house. He was further permitted to testify that, in response to defendant's questions, he told defendant that Parra was at the house and "was a friend and welcome."
Moyer's father further testified that, in July 2007, Moyer told him that defendant stated he had a bullet for her, Parra and himself.
Moyer's brother Jonathan testified that on the night of the shooting, Parra told him defendant was coming to the house with something for Parra and Moyer.
Pursuant to N.J.R.E. 404(b), evidence of other crimes, wrongs or acts is inadmissible to prove a "defendant's criminal disposition as a basis for establishing guilt of the crime charged." State v. Covell, 157 N.J. 554, 570 (1999) (citing State v. Stevens, 115 N.J. 289, 293 (1989)). "Despite the fact that the type of evidence excluded by N.J.R.E. 404(b) is often referred to merely as 'other crime' evidence, the Rule's exclusion applies to 'crimes, wrongs or acts,' so that it also excludes evidence of other wrongs and of other acts generally when offered for the proscribed purpose." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 7 on N.J.R.E. 404(b) (2011). "The evidence presented through this rule should not be used to 'suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.'" Covell, supra, 157 N.J. at 570 (quoting State v. Weeks, 107 N.J. 396, 406 (1987)). Evidence of this nature is expressly admissible to prove other facts in issue, such as "'motive, intent, plan, knowledge, identity, or absence of mistake or accident.'" Ibid. (quoting Stevens, supra, 115 N.J. at 293).
"In order for other-crime and other-conduct evidence to be admissible," the evidence must satisfy the four-part test set forth in State v. Cofield, 127 N.J. 328, 338 (1992). Id. at 564. Accordingly, to be admissible, evidence of other crimes or acts (1) must be relevant to a material issue; (2) must be similar in kind and reasonably close in time to the offense charged; (3) must be clear and convincing; and (4) must have probative value that is outweighed by its apparent prejudice. Cofield, supra, 127 N.J. at 338. The fourth prong of this test incorporates the traditional probative value-prejudicial impact analysis required by N.J.R.E. 403. State v. Long, 173 N.J. 138, 162 (2002). It is important to note, however, "that the four Cofield prongs are not equally applied in all cases, and the courts require varying degrees of compliance with each prong depending on the facts of the case as well as the nature of the other conduct evidence and its relationship to the current case." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 404(b) (2011).
"The admissibility of other-crime [and other-act evidence] is left to the discretion of the trial court." Covell, supra, 157 N.J. at 564. The Supreme Court has held that "'[t]he trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard.'" Ibid. (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)).
Here the judge admitted the evidence of defendant's threats because they were relevant to motive and intent and occurred in close temporal proximity to the crime. She found the probative value outweighed the prejudice to defendant and prohibited the State from using inflammatory statements, such as "I will make your life a living hell," because she found those statements not to be directly relevant to the charges. The judge did not abuse her discretion when making these evidentiary rulings.
To the extent the judge did not explicitly discuss all four Cofield prongs, she implicitly found that the evidence of the threats was clear and convincing and that the nature of the threats was sufficiently similar to the crime to comply with the Cofield requirements. See also State v. Barden, 195 N.J. 375, 391 (2008) (permitting the appellate court to conduct a plenary Cofield review).
The judge did not give a limiting instruction after the admission of each threatening statement pursuant to State v. Blakney, 189 N.J. 88, 93 (2006), nor did defense counsel make such a request at that time. When asked later in the trial, defense counsel indicated she did not want to draw attention to the statements and would therefore prefer the judge to give the limiting instruction at the end of the trial with the other jury charges. In accordance with defense counsel's request, the judge gave the limiting charge at the end of the nine-day trial. Thus, the judge's failure to give the limiting instruction at the time of the testimony does not, under these circumstances, constitute plain error. State v Angoy, 329 N.J. Super. 79, 89-90 (App. Div.), cert. denied, 165 N.J. 138 (2000) (holding that a two-week delay between the admission of prior bad acts evidence and the limiting instruction given as part of the final charge did not constitute plain error).
In Point III defendant argues that the judge should have instructed the jury to disregard Detective Abadia's responses to defense counsel's questions regarding law enforcement's failure to investigate defendant's uncle, Nava-Avila, as a suspect. Failure to do so, he asserts, constituted plain error.
Detective Abadia testified that the police focused their investigation on defendant rather than Nava-Avila because they were sure defendant was the shooter. Defense counsel did not request that this testimony be stricken as an inadmissible police opinion. Moreover, defense counsel stated in summation,
[Detective Abadia] also told you yesterday that he relied on Autumn Moyer's statement. We must have the guy so that's it. The investigation stops here. Here's your guy, he's the guy, he's the one who did it.
Prosecutor's office takes gunpowder residue test from [defendant]. Doesn't do it with Rafael Nava-Avila. Takes my client's clothes, doesn't do that with Rafael Nava-Avila.
Contrary to defendant's claim, we conclude that defense counsel elicited Detective Abadia's testimony concerning his opinion that defendant was the guilty party for strategic purposes to support her argument that law enforcement failed to properly investigate Nava-Avila. Defense counsel did not object to the testimony, did not request a cautionary instruction from the judge, and continued to ask questions soliciting similar opinion testimony from Detective Abadia. Contrary to defendant's contention, this defense strategy cannot form the basis for a finding of plain error. See State v. Lykes, 192 N.J. 519, 539 n.7 (2007); State v. Jenkins, 178 N.J. 347, 358-59 (2004); State v. O'Carroll, 385 N.J. Super. 211, 234 (App. Div. 2006) (discussing the concept of invited error).
Finally, in Point IV, defendant argues that the judge should have given the jury a Hampton/Kociolek*fn5 charge, which informs the jury of its function to determine whether the statements allegedly made by defendant were actually made, and, if so, whether the statements or any portion of them were credible. The charge instructs the jury to use caution in evaluating oral statements because of the inherent risk of a misunderstanding or inaccurate recollection of defendant's words. Defense counsel withdrew her request for this charge before the judge charged the jury. Defendant argues that this instruction is mandatory pursuant to N.J.R.E. 104(c) and case law. See State v. Jordan, 147 N.J. 409, 425, 430 (1997); Hampton, supra, 61 N.J. at 272; State v. Setzer, 268 N.J. Super. 553, 565 (App. Div. 1993). Defendant further asserts the judge's failure to provide this charge to the jury constitutes plain error.
In Jordan, supra, the Court indicated that if defendant requests that a Hampton charge not be given, a court should satisfy itself with written findings that defendant's reasons have merit before deciding not to give the charge. 147 N.J. at 425-26. The Court also directed, however, that a failure to give the charge constitutes reversible error only if, in the context of the entire case, the omission is "clearly capable of producing an unjust result" pursuant to Rule 2:10-2. "If, however, the defendant's statement is unnecessary to prove defendant's guilt because there is other evidence that clearly establishes guilt . . . the failure to give a Hampton charge would not be reversible error." Ibid. at 425-26.
The evidence against defendant was overwhelming. He was identified by his former girlfriend, Moyer, as the shooter. He was apprehended shortly after the shooting in a truck with the murder weapon in close proximity to him. He had repeatedly threatened Moyer with violence and possessed the strong motive of jealousy to hurt the victims. In light of this evidence, we cannot conclude that the judge's failure to give written reasons for complying with defense counsel's request not to give the Hampton/Kociolek charge was clearly capable of producing an unjust result.