April 16, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS D. RIVERA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-06-1018.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Messano and Espinosa.
Following a jury trial, defendant Luis D. Rivera was found guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). The judge sentenced defendant on count one to a custodial term of five years with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After merging count three into count two, the judge imposed a concurrent term of four years in prison.
Defendant raises the following issues on appeal:
THE COURT COMMITTED ERROR BY NOT SUPPRESSING THE DEFENDANT'S STATEMENT POINT TWO
THE PROSECUTOR COMMITTED NUMEROUS INSTANCES OF MISCONDUCT, THE ACCUMULATION OF WHICH VIOLATED THE APPELLANT'S RIGHT TO A FAIR TRIAL, FREE OF PREJUDICE AND IS GROUNDS FOR A NEW TRIAL POINT THREE
THE APPELLANT'S CONVICTIONS TO THE CHARGES OF AGGRAVATED ASSAULT, POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE, AND UNLAWFUL POSSESSION OF A WEAPON SHOULD BE REVERSED AS THE JURY'S VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE POINT IV
THE APPELLANT'S SENTENCE WAS EXCESSIVE AS THE COURT SHOULD HAVE IMPOSED A SENTENCE ONE DEGREE LOWER ON THE CONVICTION FOR THE SECOND DEGREE AGGRAVATED ASSAULT We have considered these arguments in light of the record and applicable legal standards. We affirm.
James N. Stanley, a bouncer at The Perle Nightclub in New Brunswick, testified that on March 25, 2007, defendant was a patron in the club. When Stanley received a complaint about defendant's conduct, he escorted defendant out of the club. Sometime later, Stanley went outside the club, saw many people gathered and defendant lying on the ground across the street near an alleyway to the right of the club's front door. Someone pointed out to Stanley a knife that was near the alley.
A second bouncer, Doug Rader, testified that after Stanley escorted defendant from the club, defendant remained nearby, "drunk, obnoxious, and loud" and "preventing people from getting in." Rader told defendant, "Sir, the night is over for you. You are not coming back inside. Please move along. Just go somewhere else." Shawn McDonough, an off-duty bouncer standing outside the bar, told defendant he "need[ed] to . . . leave." When defendant refused, McDonough tried to escort him away from the front of the bar. "Another individual [came] outside from the bar," hit defendant, and went back inside. When defendant attempted to re-enter the club, McDonough grabbed him from behind. At that point, defendant "stabbed [McDonough] two times" under his shoulder and in his rib cage.
Rader "heard a scuffle," saw defendant's "arms flailing" and McDonough "trying to get away from [defendant]." As Rader approached, he saw that defendant "had a knife in his hands." Rader testified that Joseph Iwanski, another bouncer, tackled defendant to the ground, at which point "[t]he knife bounce[d] out of his hand." Rader moved the knife away from defendant and "placed [it] back down on the ground" as police arrived on the scene.
New Brunswick Police Sergeant George Bistany was patrolling the area when he "was flagged down by a . . . big crowd of people" near the club. Upon exiting his car, Bistany found defendant lying "on the ground . . . bleeding from the head." McDonough approached Bistany, pulled up his shirt and showed the sergeant "[c]ut marks, like knife marks, on his torso and his side." Bistany testified that Rader "picked [the knife] up off the ground, and handed it to" him.
Bistany "got [defendant] off the ground" and placed him in handcuffs. Both McDonough and defendant were transported to the hospital via ambulance to be treated for their injuries.
Defendant's girlfriend, Maria Tapia, testified as a defense witness. She had gone to the club with defendant and her girlfriend, Daniela. Tapia testified that they left the club and were on their way to the car when a bouncer insulted defendant. Another bouncer came and punched defendant in the head, and three others surrounded defendant. Tapia claimed that the bouncers cornered defendant, hit him, kicked him in the back of the knees, knocked him down, stomped on his face and did not stop until they tired. Tapia identified photographs she took showing defendant's injuries.
Tapia also claimed that when the police arrived, the men ran into an alley while defendant lay unconscious where he fell. Tapia repeatedly denied that defendant had a knife that evening.
Defendant testified that once outside the club, a man came out of the club and called him "a f---ing Puerto Rican spick." Defendant wanted no trouble and was going home when he felt someone hit him in the back of his head. Another person hit him in his face, and he fell to the ground. Defendant claimed he was beaten continuously by two men with their "hands and fists" for approximately "three to five minutes."
Defendant looked for something to defend himself because he was "fighting for [his] life." As he "looked down, there [wa]s a knife," and defendant "picked it up." Three more men approached defendant and he swung the knife sideways but did not know whether he had stabbed anyone.
New Brunswick police detective John Selesky, who had testified briefly during the State's case in chief, was called as a rebuttal witness. Selesky described the circumstances surrounding the videotaping of a statement he took from defendant at police headquarters after defendant was released from the hospital. The videotaped statement was played for the jury, which was also provided with a printed transcript of the statement.*fn1
The statement was at odds with defendant's testimony. When Selesky showed defendant the knife recovered from the scene, defendant stated, "That's not my knife. I got a knife, it's in my car." Defendant offered to take the police to his car and show them the knife. Defendant also told Selesky that he "didn't do nothin' to . . . the other guy." Defendant admitted he was "drunk," but claimed he was "knocked out" and did not stab anyone. Selesky testified before the jury that he and other officers attempted to locate defendant's car at the scene, but found no vehicle registered to him.
Defendant contends that the judge erred in admitting his statement at trial. His motion to suppress the statement was the subject of a pre-trial hearing held several months before the trial commenced.
At the hearing, Selesky testified that he advised defendant of his Miranda*fn2 rights. He told defendant that he would read him his rights in Spanish and asked, "You speak English, right?" Defendant responded that he spoke "[a] little bit, not too much." Selesky next asked whether defendant "[could] understand some English," and defendant responded, "Yeah." Selesky introduced Spanish-speaking police officer Will Contreras, and advised that Contreras would read the rights "in Spanish so that [defendant could] understand them" and would translate if defendant had "a problem."
Contreras read defendant his rights in Spanish from a Miranda rights card. Defendant responded affirmatively in English when Selesky asked him if he "underst[ood] the rights[.]" Selesky asked defendant to "[s]ign the card" and asked again whether defendant understood. Defendant said, "Yeah[,]" signed the card, and proceeded to respond to Selesky's questions in English.
Selesky testified that he knew defendant "might need a Spanish [interpreter] to . . . understand the questions[,]" but Selesky believed defendant understood his rights. Selesky noted, "[Defendant] started off the interview in English. He kept going in English. I offered my Spanish interpreter on the tape."
After reviewing the video of defendant's interview, the judge found that defendant "was asked if he understood each of the rights [and] he . . . indicated after each right that he did. He stated yes after each right was given and then he signed the card." The judge further observed that defendant appeared "to be of fair intelligence," "coherent," "content," "[h]is mental and physical condition appeared to be appropriate at the time" and he "underst[ood] what was happening[.]" She determined that the State had proven beyond a reasonable doubt that "Miranda was followed," and defendant "voluntarily, knowingly and intelligently waived" his rights before giving the statement to Selesky.
Defendant argues the statement was improperly admitted because several factors rendered him unable to knowingly, intelligently, and voluntarily waive his rights to remain silent, specifically: his lack of fluency in English, preoccupation with the well-being of his girlfriend, his diminished mental and physical condition as a result of alcohol consumption and injuries from the incident, his inexperience with the criminal justice system, and his intimidation by the custodial surroundings. Defendant further notes that he required the assistance of an interpreter during the course of the trial.
A defendant must "voluntarily, knowingly and intelligently" waive his rights during custodial interrogation. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707; accord State v. A.G.D., 178 N.J. 56, 67 (2003). "[T]he New Jersey common law privilege against self-incrimination affords greater protection to an individual than that accorded under the federal privilege." A.G.D., supra, 178 N.J. at 67 (quoting In re Grand Jury Proceedings of Guarino, 104 N.J. 218, 229 (1986)). The State "must prove beyond a reasonable doubt that the suspect's waiver [of the privilege against self-incrimination] was knowing, intelligent, and voluntary in light of all the circumstances." Ibid. (quoting State v. Presha, 163 N.J. 304, 313 (2000)). In reaching its decision, the court must assess "the characteristics of the defendant and the nature of the interrogation." State v. Knight, 183 N.J. 449, 462 (2005) (quoting State v. Galloway, 133 N.J. 631, 654 (1993)).
"In reviewing a motion to suppress evidence, an appellate court must defer to the trial court's fact findings and 'feel' of the case and may not substitute its own conclusions regarding the evidence, even in a 'close' case." State v. Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010) (citing State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964))). Even when there is a videotape of a suspect's police encounter, an appellate court still owes the trial court's factual findings deference, unless the factual findings are "'clearly mistaken' or 'so wide of the mark' that the interests of justice require appellate intervention." State v. Elders, 192 N.J. 224, 245 (2007).
The trial judge specifically considered the Court's holding in State v. Mejia, 141 N.J. 475, 503 (1995), in which "police, confronted with the practical problem of advising a Spanish-speaking suspect, adequately administered the Miranda warnings." She appropriately considered the totality of the circumstances surrounding defendant's interrogation and concluded the State had met its burden of proof. We find no basis to disturb her findings and conclusion in this regard.
Defendant next contends that numerous instances of prosecutorial misconduct at sidebar and during summation constituted reversible error. Before turning to the specific objections, we note some general principles.
The prosecution must "refrain from any conduct lacking in the essentials of fair play . . . ." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)), certif. denied, 552 U.S. 1146, 128 S. Ct. 1074, L. Ed. 2d 817 (2008). While afforded "latitude for forceful and graphic advocacy[,] . . . prosecutors should not make inaccurate legal or factual assertions during a trial and . . . must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Reddish, 181 N.J. 553, 640-41 (2004) (citations and internal quotation marks omitted).
"Prosecutorial misconduct is a basis for reversal of a criminal conviction if the conduct was so egregious that it deprived the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002) (citing State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)). When determining whether alleged prosecutorial misconduct is "so egregious," the court must consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. (quoting State v. Ramseur, 106 N.J. 123, 322-23 (1987).
During her testimony, Tapia referred to medical records detailing treatment for injuries defendant received in the altercation. At a sidebar, the prosecutor questioned defense counsel as to the whereabouts of the medical records. Defense counsel voiced an objection because the prosecutor questioned him loudly enough to have been heard by the jury. He asked that the prosecutor be sanctioned, the remarks stricken from the record and a curative instruction be given to the jury. The judge immediately provided the following instruction:
Ladies and gentlemen, I will instruct you later. I'll just tell you now as well, any comments that are made between Counsel, they're not evidence. Any questions that may have been put from the Prosecutor to Defense Counsel, he's not a witness. He is not being questioned. But, regardless, comments made between Counsel, or even comments that may be made between the Court and Counsel, they're not evidence. The only evidence you are to consider is from the testimony of the witnesses that testified.
A second sidebar drew similar objections from defense counsel. The judge immediately gave the following instruction: "Again, folks, any of the comments made by Counsel, between Counsel, or from Counsel to the Court, are not evidence." Defendant did not object to either instruction.
During summation, the prosecutor told the jury that the judge had instructed them about "bias, prejudice, sympathy, or emotion. They have no place . . . in the courtroom. Your deliberations are not to be ruled by that. It's sad that the defendant has injected that . . . into this case." Defense counsel objected and the judge overruled the objection.
Also during summation the prosecutor stated:
These guys did not beat [defendant] the way [he] said they did. Continually stomping, kicking the legs and the ribs. And ladies and gentlemen, where are the photographs? If they beat him that bad, why not take pictures of those injuries? That is the lack of evidence. Where are the photographs?
Defense counsel objected to these comments and the judge overruled the objection.
Lastly, defendant argues that during his summation, the prosecutor "mischaracteriz[ed]" defendant's testimony by stating:
Please listen to the law when the Judge reads it to you. If you listen to the law, you apply the facts, the physical evidence in this case supports the law. Remember, the defendant has told you, he's done it. The defendant has told you that he stabbed him. The defendant has, basically, told you, "I'm guilty."
Defendant's objection was overruled.
None of these comments, taken alone or cumulatively, amounted to prosecutorial misconduct requiring reversal of defendant's conviction. Regarding the loud comments at sidebar, the judge acted swiftly and decisively in remedying the circumstances, and we presume the jury fully complied with her instructions. State v. Nelson, 173 N.J. 417, 447 (2002). During the trial, reference was made to defendant's Hispanic heritage, his girlfriend and his children. Perhaps the prosecutor should not have equated those comments to an improper invocation of jury sympathy. Nonetheless, the prosecutor's remarks echoed the judge's instructions to the jury and were fleeting in nature.
As to the comments regarding the lack of photographs of defendant's legs or torso, a prosecutor is permitted to "suggest to the jury that the defense's presentation of the evidence was unbalanced and incomplete." Josephs, supra, 174 N.J. at 127. However, while "comment[s] on the evidence and its significance to the jury is permitted, prosecutors may not discuss the significance of testimony not presented." Id. at 126 (citing State v. Sinclair, 49 N.J. 525, 548-49 (1967)).
In overruling defendant's objection, the judge noted the remarks were "relatively general." Moreover, defendant introduced other photographs showing the injuries he sustained to his head, face and hand, thereby producing sufficient factual support for the claim that he acted in self-defense. The prosecutor's comments did not improperly shift the burden of proof to defendant, and they did not "substantially prejudice defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Timmendequas, supra, 161 N.J. at 575.
The final comments asked the jury to consider defendant's self-defense claim in accordance with the law. The prosecutor properly reminded the jury that in his testimony, defendant admitted picking up a knife and swinging it in the direction of his purported attackers. The prosecutor's final comment -- "The defendant has, basically, told you, 'I'm guilty.'" -- was clearly improper and we do not condone such a mischaracterization of the legal conclusions to be drawn from the evidence. See, e.g., State v. R.T., 205 N.J. 493, 511 (2011) (noting that "[a]ll affirmative defenses . . . have, at their core, the notion that a defendant has indeed committed the interdicted act but that he should be excused from its consequences"). The remark, however, did not deprive defendant of a fair trial.
Defendant argues that his conviction must be reversed and a new trial granted because the evidence was insufficient to prove beyond a reasonable doubt that he had not acted in self-defense. The State contends the argument is not cognizable on appeal because defendant did not move for a new trial below. See Rule 2:10-1 ("the 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").
When the issue is improperly raised on appeal, an appellate court may, "in the interest of justice," address the merits of the claim. State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990); see also State v. Johnson, 203 N.J. Super. 127, 133-34 (App. Div.), certif. denied, 102 N.J. 312 (1985). Overlooking the procedural infirmity of defendant's argument, we conclude the argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).
"[I]t is a jury function, not the function of the reviewing court, to evaluate witness credibility and the weight and worth of the evidence." State v. Taccetta, 301 N.J. Super. 227, 241 (App. Div.), certif. denied, 152 N.J. 187-88 (1997). "The evidence should be sifted to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982).
In short, the jury was entitled to overlook the inconsistencies in the testimony of the State's witnesses and reject defendant's and Tapia's testimony, particularly in light of the variance between defendant's testimony at trial and the statement he gave to police. We cannot conclude that the jury's verdict was "a miscarriage of justice under the law." R. 2:10-1.
Prior to sentencing, defendant requested the judge sentence him as a third-degree offender on the second-degree aggravated assault conviction. See N.J.S.A. 2C:44-1(f)(2)(permitting the judge to "sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted" when "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands"). In considering such a request, a court should apply a two-step process by which it "must be clearly convinced that the mitigating factors substantially outweigh the aggravating ones and that the interest of justice demands a downgraded sentence." State v. L.V., 410 N.J. Super. 90, 109 (App. Div. 2009) (quoting State v. Megargel, 143 N.J. 484, 496 (1996) (internal quotation marks omitted)), certif. denied, 201 N.J. 156 (2010). "The reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Megargel, supra, 143 N.J. at 505.
The judge identified three aggravating sentencing factors: the nature and circumstances of the offenses, N.J.S.A. 2C:44-1(a)(1); the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge identified three mitigating sentencing factors: grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1(b)(4); defendant would compensate the victim, N.J.S.A. 2C:44-1(b)(6); and defendant has no prior criminal record, and has led a law-abiding life for a substantial period of time before the commission of the present offense, N.J.S.A. 2C:44-1(b)(7). She specifically did not find that the mitigating factors "substantially" outweighed the aggravating factors.
To overcome this shortfall, defendant argues that the judge found certain aggravating factors that were unsupported, and failed to find other mitigating factors that were supported, by the record. For example, defendant contends that aggravating factor three did not exist given his lack of a prior criminal record. However, the Court has said, "[I]t cannot be disputed that aggravating factors (3) and (9) . . . can be based on assessment of a defendant beyond the mere fact of a prior conviction, or even in the absence of a criminal conviction." State v. Thomas, 188 N.J. 137, 154 (2006). Here, the judge's determination was supported by the evidence that defendant went to the club, admittedly drank to excess, and was armed with a knife which he used during the altercation to stab McDonough.
At sentencing, defendant argued that mitigating factors two, three, and five -- N.J.S.A. 2C:44-1(b)(2) ("defendant did not contemplate that his conduct would cause or threaten serious harm"); (b)(3) ("defendant acted under a strong provocation"); (b)(5) (the victim's conduct "induced or facilitated [the] commission" of the crime) - were applicable. However, the judge appropriately rejected these arguments based upon the jury's verdict.
Defendant argues before us that the judge should have found mitigating factors eight, nine and eleven -- N.J.S.A. 2C:44-1(b)(8) (defendant's conduct resulted from "circumstances unlikely to recur"); (b)(9) ("the character and attitude of the defendant indicate that he is unlikely to commit another offense"); (b)(11) (imprisonment would present excessive hardship to defendant or his dependents). The judge specifically rejected factor eleven, and the other two factors, while arguably supported by the record, implicitly found their way into the sentencing calculus since the judge imposed a five-year term, i.e., the bottom of the sentencing range for a second-degree offense.
Our review of the trial judge's sentence is limited. An appellate court must "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)). When the judge has followed the sentencing guidelines, and her findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Id. at 608 (citing Roth, supra, 95 N.J. at 364-65); accord State v. Cassady, 198 N.J. 165, 183-84 (2009). We find no basis to disturb the sentence imposed.