April 30, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRANK VASQUEZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 02-02-0168.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2012
Before Judges Messano, Yannotti and Guadagno.
Following a jury trial, defendant Frank A. Vasquez was found guilty of first degree robbery, N.J.S.A. 2C:15-1. He was sentenced to a twenty-year term of imprisonment subject to a No Early Release Act (NERA) parole ineligibility term. N.J.S.A. 2C:43-7.2. On appeal, defendant presents the following arguments:
BECAUSE THE CREDIBLE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS GUILTY OF FIRST DEGREE ROBBERY, THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON THAT COUNT
THE TRIAL JUDGE ERRONEOUSLY RULED THAT DEFENDANT'S 1991 CONVICTION FOR ROBBERY COULD BE INTRODUCED BY THE STATE TO IMPEACH HIS CREDIBILITY IF HE TESTIFIED IN HIS OWN DEFENSE. THE JUDGE ALSO FAILED TO DETERMINE WHETHER THE DEFENDANT'S PRIOR CONVICTIONS WOULD BE SANITIZED
THE STATE IMPROPERLY ELICITED TESTIMONY THAT THERE WAS AN "ACTIVE WARRANT" FOR DEFENDANT'S ARREST, REPEATING IT EVEN AFTER THE JUDGE ADVISED COUNSEL THAT HE WOULD INSTRUCT THE JURY TO DISREGARD THE WARRANT REFERENCE, AND THE COURT'S BELATED INSTRUCTION WAS INSUFFICIENT TO CURE THE PREJUDICE
TRIAL COURT ERRED TO THE DEFENDANT'S PREJUDICE BY GIVING THE INSTRUCTION ON FAILURE TO TESTIFY WITHOUT DEFENDANT'S CONSENT
THE PROSECUTOR'S MISCONDUCT DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL
UNDER THE CIRCUMSTANCES OF THIS CASE, THE SENTENCE IMPOSED ON THE DEFENDANT, AT THE VERY TOP OF THE RANGE FOR A FIRST DEGREE OFFENSE, WAS EXCESSIVE
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The day after Thanksgiving is known in the retail trade as "Black Friday." It marks the beginning of the Christmas/holiday shopping season and many stores open early and close late on that date while offering enticing promotional sales. In 2001, Black Friday fell on November 23, and Value City department store in Vineland was open until midnight.
Shortly after closing, store manager William Waltman was counting the day's receipts from his store's busiest shopping day of the year. He was in a locked room in a secured area on the second floor called the "cash room" located adjacent to his office. Around 12:20 a.m., Luis Vasquez, defendant's brother and one of two security guards on duty, rang a bell seeking admittance to the secured second floor area. It was unusual for Luis to come to the second floor area as he was assigned to loss prevention and normally stationed near the store entrance. Nevertheless, when Waltman recognized Luis in a video security monitor, he pressed a buzzer allowing him to enter the area.
Waltman remained in the locked cash room for fifteen more minutes. By 12:35 a.m., he had finished counting the receipts and locked them in the store's vault. He set the alarm and as he was leaving the cash room, he noticed a man with a gun wearing a black ski mask and white gloves. The gunman ordered Waltman down on the floor, put the gun to his head and asked him, "Do you value your life?" The gunman told Waltman to open the safe but Waltman lied, saying the safe was on a time lock and could not be opened until morning. Waltman offered his own money and took out his wallet and gave the gunman all the cash he had, $260 to $300. When Waltman got up from the floor he noticed Luis in the room. The gunman then asked Luis to lead him out of the store.
Before opening the emergency exit door for defendant, Luis used his key to disable the fire alarm. A member of the cleaning crew saw Luis following the gunman toward the exit and, after unlocking the door, Luis told the gunman, "go, go, go."
Luis was arrested later that day by Detective Thomas Martorano of the Vineland Police Department and admitted facilitating the robbery in return for a share of the proceeds.
He initially did not identify his brother as the gunman but named a disgruntled former employee, Velar. Further investigation excluded Velar as a suspect and Luis, who remained incarcerated, was again interviewed. Luis told Martorano, Velar was not involved and offered to identify the gunman in exchange for dismissal of the charges. When this request was denied, Luis identified his brother, "Frankie," as the gunman but claimed he did not know Frankie was planning the robbery and only recognized him while the robbery was in progress.
Martorano checked defendant's criminal history and, after finding an active warrant, went to defendant's home and arrested him on the unrelated warrant. Martorano transported defendant to the police department and, after advising him of his Miranda*fn1 rights, told him his brother identified him as the gunman in the Value City robbery. Defendant replied that he wanted to do the "right thing" but asked to speak with his brother first.
Martorano arranged for defendant to speak with Luis who was incarcerated in the Cumberland County jail. After his first conversation with Luis, defendant did not immediately agree to provide details of the robbery. A second call came in from Luis who complained to Martorano his brother had been arrested without his cooperation as he had hoped to assist in the investigation in return for consideration with his charges. Martorano explained they arrested defendant on an unrelated warrant and not on the basis of his information.
After the second conversation with his brother, defendant admitted planning and executing the robbery. He knew Black Friday would generate considerable revenue at Value City and he expected to steal over $300,000 in store receipts. He also knew the store would remain open until midnight, so he arrived at 11:45 p.m. and hid in the bathroom, standing on the toilet.
Defendant claimed that he used a fake plastic gun and admitted taking $241 from Waltman. Although he attempted to exculpate Luis, defendant told Martorano that after he took cash from Waltman, Luis offered him money from his wallet stating he wanted "to make it look good."
Defendant was charged in a four-count indictment with robbery and related charges but only the robbery charge was submitted to the jury.
Luis pled guilty to participating in the Value City robbery and received a five-year sentence in return for agreeing to testify truthfully at his brother's trial. However, at trial, Luis claimed that he could not remember any of the details of the robbery because he was taking Prozac.
Defendant argues the evidence at trial was insufficient to prove his guilt beyond a reasonable doubt. We disagree and reject the argument on procedural and substantive grounds.
Before the case went to the jury, defendant moved for a judgment of acquittal on three counts of the indictment, but not as to the robbery charge. This prompted the trial judge to comment, "I respect the fact that [defendant] recognized there was sufficient proof to present [the robbery count] to the jury." Defendant concedes that he failed to file a timely motion for a new trial after the guilty verdict.
An argument addressed to the sufficiency of the evidence is not cognizable on appeal unless the defendant made a motion below for a new trial on that ground within ten days after the jury verdict. R. 2:10-1; R. 3:20-2. The time period may not be enlarged by the trial court or by the parties' consent. R. 1:3-4(c). Notwithstanding a motion's untimeliness, we may consider such an argument on the merits in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993).
In considering whether a jury verdict was against the weight of the evidence, our task is to decide whether "it clearly appears that there was a miscarriage of justice under the law." Id. at 512 (quoting R. 2:10-1). Our "review is limited to the correction of injustice resulting from a plain and obvious failure of the jury to perform its function." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985).
Defendant concedes the sufficiency of the State's proof that a robbery occurred, but claims that "there was no physical evidence linking him to the robber [sic]." Luis's identification of defendant as the gunman coupled with defendant's confession to the crime was sufficient support for the jury verdict. Defendant's claim that he falsely confessed because he was "trying to protect his brother by taking the blame [for the robbery]" finds no support in the record.
Defendant next claims the trial court erred in ruling that his 1991 robbery conviction could be introduced to impeach his credibility if he testified. The trial court conducted a pre-trial hearing to determine the admissibility of defendant's prior convictions and ruled that, should defendant choose to testify, three convictions would be admissible:
1. November 1, 1991 conviction for third degree attempted theft resulting in a three-year prison sentence;
2. November 1, 1991 conviction for third degree possession with intent to distribute resulting in a three-year prison sentence; and
3. October 29, 1993 conviction for third degree possession with intent to distribute in a school zone resulting in a five-year prison sentence.
After trial began, the court advised defendant that if he chose to testify, only the degree and date of the convictions would be admitted. During the trial and on appeal defendant conceded that the 1993 conviction was admissible. He argues the 1991 convictions were too remote.
A defendant may be impeached with a prior conviction.
N.J.R.E. 609 states: "For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." In State v. Sands, 76 N.J. 127, 144 (1978), the Court held that "whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge," and that such discretion is "broad." The Supreme Court addressed "remoteness" in Sands:
Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving.
In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible. [Id. at 144-45.]
The trial court excluded defendant's convictions for assault, contempt, criminal mischief and obstruction, but found the other convictions were in close proximity and constituted an "unbroken string of criminal activity." Considering that defendant was incarcerated for a substantial period of time between the 1993 convictions and the instant offense, we find no abuse of discretion in the trial court's ruling.
As the 1991 robbery was similar to the charges defendant was facing, the trial court's decision to limit the State to introducing only the degree of the prior crime and the date of the offense was consistent with the holding in State v. Brunson, 132 N.J. 377, 391 (1993).
Defendant next challenges the reference at trial to an active warrant. As no objection to this reference was raised at trial, we must consider whether this amounts to plain error. R. 2:10-2.
Detective Martorano testified that after Luis identified defendant as the gunman, he checked for active warrants and, after finding one, went to defendant's residence and arrested him. Later that day, when Luis called Martorano and complained that defendant had been arrested without his assistance, Martorano explained that he made the arrest based on "previous, unrelated warrants." Neither reference prompted an objection and no additional detail regarding the warrants was elicited. Although no curative instruction was sought, the trial court sua sponte advised counsel of its intention to instruct the jury not to draw any adverse inference from the warrant testimony. The judge instructed the jury:
Now, this case if you recall there was evidence regarding the reason why Mr. - - the defendant Mr. Frank Vaquez was arrested, that being warrants outstanding for his arrest and I want to instruct you regarding that. You have testimony that the defendant Frank Vasquez was initially arrested based upon a warrant unrelated to these charges. Since arrest warrants may result from civil matters, improperly addressed notices to appear in court and other non-criminal matters, it would be inappropriate to draw any adverse inference concerning the defendant's character or history simply from hearing that there was an outstanding warrant for his arrest. I therefore instruct you to disregard that fact in considering the defendant's guilt or innocence regarding the charges you're dealing with here today.
Defendant's counsel was satisfied with the proposed charge which was adequate to dispel any potential prejudice from the references.
Defendant relies on our decisions in State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), and State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999), to support his contention that references to arrest warrants constituted plain error, warranting reversal of his conviction.
Milton was a drug prosecution in which the defendant argued that cocaine found pursuant to a search warrant under a mattress in a room jointly occupied by the defendant and his brother belonged to the brother, and that he was unaware of the presence of the drug. There, we found no error in the prosecutor's statement during his opening that the police had a search warrant for the residence. Id. at 519-20. However, we found error in the prosecutor's further reference to a search warrant for the defendant's person. Ibid. In that regard, we held: the defendant was unquestionably prejudiced by the mention of the existence of a warrant to search his person. The natural inference from the mention of the warrant itself, confirmed by the cautionary instruction of the trial judge, was that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs. The trial judge's explanation to the jury that the burden of proof for a search warrant was less than that required for conviction at trial served to support this prejudicial inference. [Id. at 520.]
We followed Milton in Alvarez, supra, 318 N.J. Super. at 145-48, a case involving weapons charges in which the defendant claimed he lived in a home for transients who had access to the bedroom in which his personal effects were found. Id. at 143. We held that it was improper for the State to introduce evidence that the police went to the premises to serve an arrest warrant on the defendant and, after the defendant was arrested, they stationed a police officer inside the premises to insure that no one entered the bedroom occupied by the defendant while the police obtained a search warrant for it. Id. at 148.
However, in State v. Marshall, 148 N.J. 89, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), a murder prosecution, the Supreme Court rejected the defendant's claims of prejudice from references to search warrants during trial, holding:
We find those claims to be without merit. They have in common the proposition that the jury should be shielded from knowledge that search warrants have been issued in a criminal matter because the prior judicial determination of probable cause may influence the jury to assume guilt. We are aware of no authority in support of such a rule. We are satisfied that a properly instructed jury will not presume guilt based on the issuance of a search warrant. We note, moreover, that the fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly. [Id. at 240.]
The Court distinguished Milton, stating:
That case dealt with a prosecutor's reference to a search warrant that had the capacity to mislead the jury. Defendant does not claim that any reference to search warrants in these proceedings was misleading, and we are satisfied from our own review of the record that the references of which defendant complains were accurate. [Ibid.]
We followed Marshall in our decisions in State v. McDonough, 337 N.J. Super. 27, 32-35 (App. Div.), certif. denied, 169 N.J. 605 (2001), and State v. Williams, 404 N.J. Super. 147, 166-69 (App. Div. 2008), certif. denied, 201 N.J. 440 (2010).
Our review of the record of the present case satisfies us that the passing references to defendant's arrest on an unrelated warrant did not have the capacity to mislead the jury, as did the references in Milton and Alvarez. This testimony was part of Martorano's explanation to Luis as to why defendant had been arrested without his assistance. Moreover, we are satisfied that any potential for prejudice was negated by the trial court's instruction to the jury.
Defendant next claims that the trial court erred in instructing the jury on defendant's failure to testify without his consent. As this objection was not raised at trial, we must consider whether the alleged error amounts to plain error. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of a '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007)(quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
On May 22, 2003, the trial judge informed defendant of his right to testify and read the proposed jury charge in the event defendant chose not to testify. The judge also read an alternative charge if defendant testified, which included limiting instructions on the consideration of his prior convictions. At that time, defendant had not decided whether he would testify and his counsel indicated that if a defense witness, Karen Bakhtiar, was located and testified, defendant would choose not to testify.
Ms. Bakhtiar testified on May 27, 2003, and afterwards the court again questioned defendant:
COURT: Mr. Vasquez, do you recall that we have discussed on last Thursday . . . your right to testify in . . . this trial. Do you recall our discussions in that regard?
COURT: Do you recall me reading to you the jury instructions that would be given in the event you elected to testify or if you elected not to testify? DEFENDANT: Yeah.
COURT: All right. Did you have an ample opportunity to speak with your attorney concerning your election to testify or your right not to testify?
DEFENDANT: Yes, I have.
The judge then took a brief recess to give defendant more time to discuss with his attorney the issue of whether he wanted to testify. When court reconvened the judge continue his questioning:
COURT: Your attorney is advising me that you wish to exercise your right not to testify in this trial?
COURT: And you understand that I will read to the jury the jury instruction regarding it, the fact that they may not take any adverse interest [sic] against you because it is your right not to testify. I've read it to you before; do you recall that? DEFENDANT: Yes.
The court then found that the defendant made a "knowing election to exercise his right not to testify in this matter, that I've explained to him the jury charges with respect to his right to remain silent as well as the right to testify and what the jury charges would provide to the defendant."
At the conclusion of the jury charge, the court asked if there were any objections to the instructions. Defense counsel replied, "None of them worth raising." Thus, over a five-day period, defendant was given several opportunities to review the proposed jury charge as to his decision not to testify. He gave no indication that he objected to any portion of the charge and never expressed any preference for the court not to address the issue at all.
Defendant misreads our decision in State v. Smith, 100 N.J. Super. 420 (App. Div. 1968), as requiring the trial court to obtain defendant's consent to a proposed jury instruction on his decision not to testify. While we noted in Smith that "it may be argued that a defendant who fails to take the stand, benefits by not having the attention of the jury directed to that fact by such instruction" we also observed that "it may with equal logic be argued that the jury is not likely to overlook defendant's failure to testify even if the court is silent on the subject." Id. at 424. Smith holds only that a defendant is entitled to have the jury instructed that it may not draw any inferences adverse to the defendant on the basis of his failure to testify. It cannot be read to require a defendant's consent to a charge on his failure to testify.
Although it is preferable that a defendant be given the choice as to whether the instruction is given, the defendant does not have a "constitutional right to resist the instruction." State v. McNeil, 164 N.J. Super. 27, 31 (App. Div. 1978), certif. denied, 79 N.J. 497 (1979). See Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978) (holding that a jury charge on the defendant's right not to testify, given over his objection, was not a violation of his Fifth Amendment rights). As Justice Stewart observed, "It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect." Lakeside, supra, 435 U.S. at 339, 98 S. Ct. at 1095, 55 L. Ed. 2d at 325.
Pursuant to R. 1:7-2, defendant is required to challenge instructions at the time of trial. "Generally, a defendant waives the right to contest an instruction on appeal if he does not object to the instructions as required by R. 1:7-2." State v. Adams, 194 N.J. 186, 206-07 (2008). "Where there is a failure to object, it may be presumed that the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003)(citing State v. Macon, 57 N.J. 325, 333 (1971)). Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised  was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
We will reverse only if we find that the instruction resulted in plain error, or "error capable of producing an unjust result." Adams, supra, 194 N.J. at 207 (citing R. 2:10-2). Not any possibility of an unjust result will suffice. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached . . . ." State v. Melvin, 65 N.J. 1, 18-19 (1974). Defendant has failed to show that the jury instruction resulted in plain error or produced an unjust result.
Next, defendant argues that the prosecutor committed misconduct during summation by vouching for Detective Martorano and by suggesting that Luis lied during trial.
"We have consistently recognized that prosecutors are afforded considerable leeway" and "are expected to make vigorous and forceful closing arguments to juries." State v. Smith, 167 N.J. 158, 177 (2001). "[I]n order to justify reversal, the [prosecutorial] misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" Id. at 181 (quoting State v. Frost, 158 N.J. 76, 83 (1999)). "Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial[.]" State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002).
Referring to Detective Martorano, the prosecutor argued:
[T]here's absolutely nothing that came out of his testimony or his demeanor on the stand which would lead you to find him anything other than credible. He's got no motive I would suggest to be anything than truthful.
We have repeatedly held that a prosecutor may not vouch for the credibility of police witnesses. State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994); State v. Staples, 263 N.J. Super. 602, 604-06 (App. Div. 1993). Detective Martorano's credibility was never challenged by defendant. In fact, defense counsel relied on Martorano's testimony that defendant did not provide any details of the robbery Luis had not already told him, to establish his defense that defendant gave a false confession to save his brother. While we are at a loss to understand why the prosecutor felt compelled to mention the credibility of a witness whose testimony had not been challenged, any error was harmless.
The prosecutor also addressed the inconsistency between the inculpatory information Luis provided during the investigation and his claimed failure of recollection during trial:
Does a man lie to get his brother into trouble or out of trouble? That's the key here. If a person is ever going to tell a lie about a family member, is it going to be to get them into trouble or out of trouble?
While defendant claims these comments reflect "glaring prosecutorial misconduct," the prosecutor was rebutting defense counsel's aggressive attack on Luis' credibility during his summation:
We know that Luis Vasquez has lied once at least because he names [Velar] and then he said no that's not true. I leave it to you to decide whether he really forgot what happened.
So Luis Vasquez has lied and lied again . .
In State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991), we held that in determining whether a prosecutor's remarks were prejudicial, we must also take into account defense counsel's remarks.
We conclude there was no error, much less plain error, in the prosecutor's summation comments.
Defendant claims the imposition of a twenty-year sentence subject to NERA was excessive.
The State moved for an extended term, arguing defendant was a persistent offender as defined in N.J.S.A. 2C:44-3(a), but the court denied that motion finding an extended term would be "harshly disparate treatment" when compared to the sentence imposed on Luis, who received a five-year term.
The court found no mitigating factors and the following aggravating factors pursuant to N.J.S.A. 2C:44-1:
(3) The risk that the defendant will commit another offense;
(6) The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; and
(9) The need for deterring the defendant and others from violating the law.
Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). We must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]"
(2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) modify sentences only "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
In discussing factor three, the court noted defendant's twelve arrests as an adult; a significant history of drug abuse and addiction; and a "deplorable" juvenile record in finding that neither "probation nor county or state level incarceration had deterred this defendant from criminal activity."
As to factors six and nine, the court found the defendant had been convicted of serious offenses including attempted theft; and possession of CDS in a school zone, and noted an obvious need for deterrence.
We find the sentencing judge appropriately applied the three aggravating factors and the record firmly supports the sentence.