May 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMIE CENTENO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-06-2092.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2012
Before Judges Grall and Alvarez.
After trial by jury, defendant Jamie Centeno was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (count four); and certain persons not to possess weapons, N.J.S.A. 2C:39-7(b) (count five). On March 23, 2010, defendant was sentenced to life on the murder charge, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). Count two was merged with count one. He received a five-year term of imprisonment on count three, concurrent to count one. Four years of imprisonment were made consecutive to count one on count four, and a seven-year term with five years of parole ineligibility on count five was also made consecutive to counts one and four. Appropriate monetary penalties were also imposed. Defendant appeals, and we affirm.
We summarize the facts from the trial record. Defendant's killing of Jose Sosa occurred around midnight on December 13, 2008. Sosa was then seated with a friend at the bar, The Waterview Inn, also known as Monte's.*fn1 Earlier that evening, when defendant entered the bar, he asked the bartender, Rose Marie Nelson, if he could charge his cell phone. She directed him to another area of the bar, near the pool table. Defendant was wearing dark clothes, including a jacket or "hoodie." During the course of the evening, defendant and an acquaintance, Diana Ocasio, spoke briefly. Defendant complimented Ocasio on her appearance, and with his cell phone photographed the two of them standing together.
Approximately twenty or twenty-five minutes after defendant and Nelson spoke regarding his cell phone, defendant walked back into the bar area towards the victim, which drew Nelson's attention, as she knew that Sosa and defendant "didn't get along." Even though defendant's hood was pulled over his head, she could see his face. Indeed, Nelson testified that she had a frontal view of him until he turned to Sosa; she could even see the scar on the left side of his face. Nelson watched as defendant walked up to Sosa and drew a small gun. He pointed the gun downward towards Sosa's left side "[a]round his shoulder towards his chest area[,]" and shot him. Nelson heard a loud popping noise as the gun was fired and saw defendant walk out of the bar.
Nelson immediately called 911 and began to administer CPR to Sosa. She and other patrons eventually placed the victim in the back of a pickup truck because they feared the ambulance might be delayed in arriving. Nelson gave a statement that night and subsequently called the Camden County Prosecutor's Office after discovering defendant's cell phone where he had left it, still plugged into the wall near the pool table in the bar.
Miguel Mota testified that he was at Monte's that evening playing pool when, some ten or fifteen minutes after arriving between 11:00 and midnight, he heard a "loud pop." He grabbed his wife and sister-in-law and pushed them into a nearby bathroom. When he turned in the direction of the bar towards the source of the noise, there were "a lot of people running." From a few feet away, Mota saw an individual, hand extended outward holding a gun, wearing a black hoodie, however, he could not see a face. The victim grabbed his side and attempted to walk towards the door but collapsed on the ground. The gunman simply walked out of the bar.
Felicia Santiago, another bar patron who had known Sosa for several years, recalled noticing when he and his companion entered the premises and sat at the short end of the bar. When Santiago went outside to smoke a cigarette in the parking lot, she encountered defendant as he arrived and hugged him, as she had known him for three or four years. She introduced him to her friend. Once back inside, Santiago observed some "eye contact" between defendant and Sosa and felt sudden tension in the air. Minutes later, defendant left. After a short while, she heard the door open, the sound of a gunshot, and people running. Santiago did not see who fired the shot, but saw the victim make an abrupt movement and heard him tell her to "stay down . . . ." Sosa headed towards the door but fell backwards onto the ground.
The forensic evidence recovered from the scene corroborated that only a single shot was fired; only one projectile and one shell casing were recovered from the floor of the bar. The medical examiner, Dr. Gerald Feigin, testified that death was caused by a gunshot wound to the left side of the chest. The bullet "pass[ed] through a large artery and vein in the right lung causing massive bleeding[,]" exiting through the back. Feigin also testified that the three-by-five-inch area of stippling or gunpowder burns surrounding the entrance of the projectile indicated it was an intermediate range gunshot wound, in his opinion fired from a distance of six to eighteen inches, although in "the literature," the range of six inches to two feet was described as consistent with similar markings. The two-inch difference in height between the entrance wound and exit wound meant that the weapon was fired at a downward angle.
In September 2005, Investigator Martin Farrell of the Camden County Prosecutor's Office had investigated Sosa's involvement in the assault of Edwin Centeno, defendant's brother. While the investigation was ongoing, Farrell sent several letters to Centeno's home, eventually visiting the residence. Although Centeno was not there, Farrell spoke with defendant and explained the purpose of his visit. Because Edwin Centeno died a short time later in a car accident, Farrell never did speak to defendant's brother. As a result of his death and the State's inability to locate the second victim of the assault, the indictment charging the victim, Sosa, with, among other things, attempted murder, was dismissed in January 2007.
On appeal, defendant raises the following points:
THE TRIAL JUDGE'S FAILURE TO GIVE A SUA SPONTE JURY CHARGE ON PASSION/PROVOCATION MANSLAUGHTER DENIED MR. CENTENO A FAIR TRIAL IN VIOLATION OF HIS RIGHTS. [U.S. CONST.] AMEND XIV; [N.J. CONST.] (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW)
THE TRIAL JUDGE ERRED IN BARRING CROSS-EXAMINATION REGARDING A WITNESS'S REQUIREMENT TO REGISTER AS A SEX OFFENDER POINT III
THE TRIAL JUDGE IMPERMISSIBLY SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT. (NOT RAISED BELOW)
THE LIFE TERM THAT THE TRIAL COURT IMPOSED WAS MANIFESTLY EXCESSIVE.
In a pro se filing, defendant raises the following points:
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN INSTRUCTING THE JURY, SUA SPONTE, THAT TO FIND THE DEFENDANT GUILTY OF MURDER, THE DEFENDANT IS REQUIRED TO PROVE EACH OF THE ELEMENTS BEYOND A REASONABLE DOUBT. THIS VIOLATED DEFENDANT'S RIGHT TO A JURY TRIAL AND DUE PROCESS, AS GUARANTEED BY NEW JERSEY AND UNITED STATES CONSTITUTION, AND THE SIXTH AND FOURTEENTH AMENDMENTS. (supplemental to assign[ed] counsel point IV)
THE FAILURE OF THE TRIAL COURT TO INCLUDE IN THE JURY CHARGE A SUFFICIENT CURATIVE INSTRUCTION REGARDING THE PROSECUTOR['S] COMMENTS DURING SUMMATION ABOUT THE DEFENSE COUNSEL BEING WELL-SPOKEN, INTELLIGENT, AND A HIGHEST CALIBER TRIAL ATTORNEY TO BOLSTER ITS WITNESS' TESTIMONY WAS A DUE PROCESS VIOLATION OF 14th AMENDMENT OF U.S. CONSTITUTION POINT III
DEFENDANT WAS DENIED THE RIGHT TO TESTIFY BY THE TRIAL COURT WHOM FAILED TO ASK HIM DIRECTLY IF HE WISH[ED] TO DO SO. THIS VIOLATED DEFENDANT'S RIGHTS TO A FAIR TRIAL OF THE SIXTH AMENDMENT AND TO DUE PROCESS OF THE FOURTEENTH AMENDMENT, AS GUARANTEED BY UNITED STATES AND NEW JERSEY CONSTITUTION POINT IV
THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION BY MAKING PREJUDICIAL COMMENTS THAT DEPRIVED DEFENDANT OF A FAIR TRIAL, AS GUARANTEED BY UNITED STATES AND NEW JERSEY'S CONSTITUTION, AND THE SIXTH AND FOURTEENTH AMENDMENTS POINT V
DUE TO CUMULATIVE EFFECT OF THE ERRORS COMMITTED BY THE TRIAL COURT IN THIS MATTER, DEFENDANT'S RIGHTS TO HAVING A FAIR TRIAL, AND TO DUE PROCESS OF LAW, AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION WERE VIOLATED BY TRIAL ERRORS.
Defendant claims the court erred by failing to charge the jury on the issue of passion/provocation manslaughter, an instruction not requested at trial. When a defendant fails to request a passion/provocation charge, the trial court is duty-bound to provide such a charge only "where the facts clearly indicate the possibility that the crime was manslaughter based upon . . . provocation/passion . . . ." State v. Choice, 98 N.J. 295, 298 (1985) (quoting State v. Powell, 84 N.J. 305, 318 (1980)). Trial courts are not required "'to sift through the entire record . . . to see if some combination of facts and inferences might rationally sustain' a charge . . . ." State v. R.T., 205 N.J. 493, 509 (2011) (quoting Choice, supra, 98 N.J. at 299). Rather, "the need for the charge must 'jump off' the proverbial page." Id. at 510 (citing State v. Denofa, 187 N.J. 24, 42 (2006)).
Based on Nelson and Santiago's testimony, defendant asserts the record establishes animosity between himself and the victim. It is undisputed that Nelson said she knew defendant and Sosa did not get along. Santiago observed that the tension between defendant and the victim was so apparent that she commented to Sosa about it. From these facts, defendant theorizes that the jury might have convicted defendant of passion/provocation manslaughter rather than murder, and that therefore the absence of a passion/provocation instruction amounts to plain error.
Passion/provocation manslaughter requires four elements: "the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990).
Considering the first and second elements in combination, we note the alleged assault on defendant's brother, although adequate provocation if true, occurred approximately three years prior to the shooting. Even the dismissal of the indictment occurred in January 2007, almost two years before Sosa's killing. This lapse in time between provocation and the slaying was more than ample time in which to "cool off." The parties may have exchanged hostile looks, but no words were said - nothing happened which would suggest any reason defendant chose to shoot the victim on that particular night.
The first two elements are objective, viewed from the perspective of a reasonable person, the second two, subjective.
Id. at 411-13. We ask whether a reasonable person in defendant's position would have been provoked, and whether a reasonable person would have cooled off between the provocation and the slaying. But the inquiry also requires us to examine whether the provocation actually impassioned defendant, and whether he actually cooled off prior to the slaying. See State v. Rambo, 401 N.J. Super. 506, 515 (App. Div.), certif. denied, 197 N.J. 258 (2008), cert. denied, 556 U.S. 1225, 129 S. Ct. 2165, 173 L. Ed. 2d 1162 (2009). On this record we cannot conclude that defendant was actually impassioned by the provocation nor can we assess whether he actually cooled off, as the manner of the shooting was so deliberate. See State v. Taylor, 350 N.J. Super. 20, 39-41 (App. Div.), certif. denied, 174 N.J. 190 (2002).
After evaluating the evidence in the context of the entire record, it is clear that it did not support the passion/provocation charge. The facts do not clearly indicate the appropriateness of a passion/provocation charge. Choice, supra, 98 N.J. at 298. The trial court therefore did not err in not providing such a charge on its own initiative.
Defendant claims the court erred by refusing to allow trial counsel to cross-examine a State's witness about his status as a Megan's Law offender.*fn2 The Megan's Law requirements were imposed on the witness as a result of a prior juvenile adjudication. Defendant theorizes that the jury was thereby deprived of the opportunity to consider if the witness may have had an interest in currying favor with the State and was therefore biased.*fn3
Decisions regarding the introduction of evidence are reviewed pursuant to an abuse of discretion standard. State v. Kemp, 195 N.J. 136, 149 (2008). This abuse of discretion standard also applies to a judge's decision with regard to cross-examination. State v. Jenewicz, 193 N.J. 440, 467 (2008). We see no error in the judge's decision to exclude the line of questioning.
Nothing but sheer speculation connects any alleged bias with a possible prosecution for failure to register under Megan's Law. The record does not contain any actual circumstance which would have caused the witness to curry favor with the State in order to avoid a future prosecution. That this witness is subject to registration requirements is not relevant information which would have aided the jurors in deciding credibility. Defendant's true aim was to give the jurors negative character evidence which would have prejudiced their assessment of his testimony.
This conclusion is supported by the fact that defendant did cross-examine the witness extensively about his prior adult conviction for drug possession and distribution, as well as his state of intoxication that evening. Defense counsel fully developed inconsistencies between the witness's initial statement and his testimony at trial, the number of people he saw in the bar, and obstructions blocking his view of the victim's location from where he stood at the dance floor. This point therefore also lacks merit.
While giving her closing charge to the jury, the trial judge mistakenly said: "In order for you to find the defendant guilty of murder, the defendant is required to prove each of the following elements beyond a reasonable doubt . . . ." Obviously, the judge merely misspoke. The trial judge at several other points during the charge correctly reiterated that the burden of proof rests with the State, as she did during her opening charges as well. Defendant concludes from the fact that the trial judge corrected herself twice on other points during the charge, but not regarding this misstatement, that the jury may have as a result mistakenly believed that defendant bore the burden of proof. We disagree. The jury heard the correct language several times during the charge. The point does not merit further discussion in a written opinion. R. 2:11-3(e)(2).
Defendant also challenges the imposition of a life sentence for murder, which translates to seventy-five years, subject to eighty-five percent parole ineligibility pursuant to NERA. Defendant, who was thirty years old when sentenced, had an extensive juvenile history, including adjudications for possession with intent to distribute drugs, harassment, terroristic threats, aggravated assault, and conspiracy. On two occasions, defendant violated his probation. As an adult, in 1999, defendant was convicted of receiving stolen property, and in 2000, of possession with intent to distribute a controlled dangerous substance within a school zone. Defendant had multiple arrests for municipal court matters for which he received fines, community service, and jail time.
In sentencing defendant, the court reviewed the aggravating and mitigating factors, rejecting the State's suggestion that aggravating factor one should be found. N.J.S.A. 2C:44-1(a)(1).
The court also rejected defendant's suggestion that any mitigating factors were applicable, given the lack of any proofs which would have supported them. The court found only aggravating factors three, six, and nine. See N.J.S.A. 2C:44-1(a)(3), (6), and (9).
Our role in sentencing is not to reevaluate the record and reassess aggravating and mitigating factors. Our role is merely to determine whether the aggravating and mitigating factors found by the trial court are supported by the evidence. State v. Bieniek, 200 N.J. 601, 607-09 (2010). When a trial court's findings of aggravating and mitigating factors are supported by the record, where the sentencing overall complies with the criminal code, and the individual's sentence does not shock our conscience, a sentence will be upheld. See id. at 608-09.
As the court commented during the sentence hearing, this murder was an execution-style shooting which took place in a crowded bar. The sentence does not shock our conscience. See id. at 608.
Defendant in his pro se brief objects to the prosecutor's comments in which she complimented defense counsel. He suggests that the statement was prosecutorial misconduct because it attempted to bolster the credibility of the State's witnesses by pointing out that despite its effectiveness, the cross-examination did not weaken the testimony.
A reversal based on prosecutorial misconduct requires the prosecutor to have made statements which substantially prejudice a defendant's right to a fair trial. State v. Frost, 158 N.J. 76, 88 (1999). In fact, prosecutors are allowed substantial leeway so "long as their comments are reasonably related to the scope of the evidence presented." Id. at 82.
During his summation defense counsel attacked Nelson's credibility as being neither reasonable nor reliable, in fact, as "totally unreliable." He referred to his cross-examination of her and said that "[h]er mind was made up" as to the identity of the shooter.
Within reason, prosecutors are allowed to comment upon the credibility of a witness's testimony. See State v. Smith, 167 N.J. 158, 180-81 (2001) (noting that aspersions on witness credibility are problematic when not supported by the record). The factors we consider in determining whether relief is warranted are: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Frost, supra, 158 N.J. at 83. Defense counsel made a timely objection to the comments and requested the court caution the jury, which request was denied.
But given that the prosecutor's statements were merely a fair response to defense counsel's comments, were not derogatory or demeaning to defense counsel, defendant, or any defense theory, the argument has no merit. The State was also entitled to point out that despite substantial pressure, Nelson's testimony did not waver.
In his pro se brief defendant also contends that he was not directly asked if he had the desire to testify. To the contrary, the record indicates that the trial judge asked him if he understood that he had both the absolute right to testify as well as the absolute right to remain silent. In the course of his colloquy with the judge, defendant actually said on three separate occasions that he understood his options and that he did not wish to testify. Furthermore, defendant was asked if he had any questions with regard to his right to testify, and he responded by saying he did not.
In his last point, defendant argues pursuant to State v. Orecchio, 16 N.J. 125, 129 (1954), that the matter must be reversed because of the cumulative effect of multiple errors during the trial. Having found no errors at all, the argument fails.