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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...