July 19, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
IRVIN SANDI-SOTO, A/K/A IRVIN SOTO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-07-0684.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 22, 2012
Before Judges Payne, Simonelli and Hayden.
Following a jury trial, defendant Irvin Sandi-Soto was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1b (count one); two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) and (6) (counts two and four); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count five); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count six); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count seven).*fn1 At sentencing, the trial judge merged count four with count two and sentenced defendant as follows: a twenty-two year term of imprisonment with an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one; a consecutive fifteen-year term of imprisonment subject to NERA on count two; a concurrent seven-year term of imprisonment subject to NERA on count five; a concurrent four-year term of imprisonment on count six; and a concurrent nine-month term of imprisonment on count seven. The judge also imposed the appropriate assessments, penalties and surcharge, and ordered defendant to pay restitution in the amount of $9,124.24.
On appeal, defendant raises the following contentions:
THE CUMULATIVE IMPACT OF HEARSAY AND OTHERWISE INADMISSIBLE, HARMFUL EVIDENCE DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, AND XIV; [N.J. CONST., ART. 1, PARAS. 1, 9, and 10.] (Partially Raised Below).
B. Police Witness Vouching for
Credibility of Victim.
C. Police Witness['s] Opinion on
D. [S.F.'s] Testimony That Her Daughter Knew Defendant Had Committed the Assault.
E. Defendant's Status as an Illegal Immigrant.
THE DEFINITION OF "SEVERE PERSONAL INJURY" UNDERLYING THE THEORY OF AGGRAVATED SEXUAL ASSAULT IN N.J.S.A. 2C:14-2a(6) IS CIRCULAR, PROVIDING THE JURY WITH INSUFFICIENT GUIDANCE ON HOW TO FIND THIS ESSENTIAL ELEMENT. (Not Raised Below).
THE [THIRTY-SEVEN]-YEAR TERM SUBJECT TO [EIGHTY-FIVE PERCENT] PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE [BEEN] MERGED WITH THE AGGRAVATED ASSAULT CONVICTION.
A REMAND SHOULD BE ORDERED FOR AN INQUIRY INTO DEFENDANT'S ABILITY TO PAY RESTITUTION.
We affirm defendant's convictions, reverse the sentence imposed for possession of a weapon for an unlawful purpose (count six), and remand for the entry of a corrected judgment of conviction and a restitution hearing.
The following facts are pertinent to our review. S.F. and defendant, an illegal immigrant, met in early 2006. Within a month of their meeting, defendant moved into S.F.'s home. Also living there were S.F.'s daughter W.L.F., son E.F., son C.L., and wife Z.L. and their two children. Shortly thereafter, S.F. and defendant became involved in a relationship that continued until the Fall of 2007.
S.F. testified that on the evening of February 28, 2008, she had gone to a restaurant to meet some friends. Defendant later entered the restaurant and approached her. She immediately realized that he was intoxicated, and tried to ignore him. Defendant continued drinking and told people in the restaurant that he loved S.F., and she was "his woman" but she did not love him. S.F. decided to leave, and defendant followed her into the parking lot. When defendant insisted on talking to her, a mutual acquaintance intervened and offered to drive defendant to defendant's brother's home in Trenton.
S.F. arrived home, parked her SUV in front of her driveway, and proceeded to walk towards her house. As she neared her front door, defendant grabbed her from behind by her hair. She tried to scream, but defendant covered her mouth with his hand and pushed her to the ground. Her head hit the concrete and she lost consciousness.
When S.F. regained consciousness, she found herself lying face down on the passenger seat of her SUV with the toes of her left foot crushed and bleeding from being stuck in the door. She also had scratches on her face. Defendant told S.F. that he did not want their relationship to end, she was "[his] woman," she was "never going to be with any other man," and he was going to kill her and then himself. Defendant then became angry and started choking S.F., causing her to again lose consciousness.
When S.F. regained consciousness, she found herself lying on the back seat of her SUV with her pants down by her knees. She was in pain and there was a large amount of blood coming from her vagina. Defendant continued driving around aimlessly. As the night progressed, S.F. laid down on the back seat feeling shaky and cold and went in and out of consciousness. Every time she moved she could feel more blood coming from her vagina. She was scared and thought she was going to die. At one point, when she was conscious, she saw defendant hit himself in the face, stating, "look what I did to you." He told her that he could not let her go because her children would kill him if they saw the state she was in; he repeated that he was going to kill her and then himself.
At some point, S.F. again lost consciousness. When she regained consciousness the next morning, she found herself alone in her SUV at a train station. She climbed into the driver's seat, used a blanket to help control her vaginal bleeding, and eventually drove home. Upon arriving home, she called W.L.F. and asked her to come outside. According to S.F., W.L.F. began screaming and crying when she saw her, and immediately said to her that she knew defendant "did that to [her]."
Officer John Rossetti of the Trenton City Police Department testified that he responded to S.F.'s home shortly after 9:30 a.m. on February 29, 2008, and saw that S.F. had blood on her clothing and face, her face was red and bruised, and she was looking around fearfully with tears in her eyes. S.F. was in a daze, and it took her a while to tell him what had happened.
The officer also saw blood on the back seat of the SUV.*fn2
An ambulance eventually transported S.F. to the hospital.
Detective Nancy Diaz of the Mercer County Prosecutor's Office and Detective Scott Peterson of the Trenton City Police Department testified that they went to the hospital to speak with S.F. It was apparent to them that S.F. had been beaten badly -- she had red marks all over her face, choke marks around her neck, her ear was bleeding, her mouth and tongue were swollen, and she was crying and appeared to be in a great deal of pain. Nonetheless, she was able to give them a statement about what had happened.
After speaking with S.F., Dets. Peterson and Diaz obtained a warrant for defendant's arrest. Defendant was arrested on March 14, 2008. The next morning, they interviewed defendant after defendant received and waived his Miranda rights.*fn3 During the interview, defendant, who periodically broke down crying, admitted that when S.F. arrived home on February 28, 2008, he grabbed her by the shoulders, dragged her to the SUV, hit her head on it, closed the door on her foot, and choked her.
Defendant also said that after several hours of driving around with S.F., they had "consensual, rough sex" at the train station, and he exited the car and left S.F. there after they finished.
Dr. Mohammed Saleem, a trauma surgeon, testified that he treated S.F. at the hospital, and saw that she was in both physical and emotional distress. Her face was bruised and swollen, there was hemorrhaging in the blood vessels in her eyes, her neck was bruised, her lower stomach was tender, her left foot was bruised and abraded, her genitals were bruised, and there was blood coming from her vagina. He determined that S.F.'s heavy vaginal bleeding required immediate attention and called Dr. Bruce Brodkin, a gynecologist, for assistance.
Dr. Brodkin testified that he transported S.F. to the operating room and placed her under general anesthesia so that he could locate the source of her vaginal bleeding. He discovered two lacerations inside S.F.'s vagina that were caused by a sharp instrument. The more significant laceration, which was the major source of the bleeding, was high in S.F.'s vagina and had perforated into her abdominal cavity. He sutured the laceration to control the bleeding. Had he not done so, the bleeding would have continued and caused major problems and possibly an abdominal infection. He opined that because most trauma due to rough sex is to the external genitalia, this internal injury was not due to rough sex.
After the surgery, S.F. went into shock and required medicine to stabilize her blood pressure. She also received antibiotics to avoid infection, and pain medication. She remained in the hospital until March 8, 2008. Defendant called her while she was still in the hospital, asked how she was doing, and told her he loved her. He said he was sorry, had not done anything to her, and wanted her to go away with him.
S.F. testified that, since the assault, she had suffered from depression, headaches, difficulty sleeping, and memory and concentration problems. She had fear issues, could no longer trust people, rarely went out, and no longer socialized with the friends she was with on the night of the attack. She underwent months of treatment with a neurologist and psychiatrist, and had to be retrained at her job because of memory problems the attack caused.
Z.L. testified that three to five days after the attack, defendant called her three times from various unknown numbers. During the first call, he said that he wanted to talk to S.F. to tell her that he loved her, and he wanted her to forgive him. During the second call, he said that he wanted to see S.F. and asked whether he should buy her some flowers. Z.L. told him to go to S.F.'s workplace to meet with S.F. During the third call, he said he would not go to S.F.'s workplace because "you guys got everything set out. You just trying to catch me." It was clear to Z.L. that defendant knew the police were looking for him. Defendant then told Z.L. that he did not do anything to S.F. except hit her.
Z.L. also testified that at approximately 1:00 a.m. on February 29, 2008, she saw S.F.'s SUV outside their home. She then heard someone come into the house, go into the kitchen, rustle about and walk outside again. She glanced back outside and saw the SUV drive away.
W.L.F. testified that prior to S.F. leaving to go to the restaurant, she saw defendant take S.F.'s cell phone outside and heard him talking to someone and telling that person to stop calling S.F. because he was her boyfriend. When defendant came back inside, he tried to erase the call he had made.
W.L.F. also testified that she waited up for S.F. to come home on the night of the attack. At one point, she heard S.F.'s SUV, looked outside and saw that it was parked with the engine running. When S.F. did not come inside, W.L.F. looked outside again and saw someone wearing a hat, whom she believed was defendant, sitting in the driver's seat. When the SUV subsequently pulled away, W.L.F. assumed that S.F. had decided to get something to eat, as she occasionally did after an evening out.
Defendant testified and denied committing the crimes. He gave a different version of what had occurred on the night of the attack. He said that S.F. had confronted him after she saw him with another woman, he pushed S.F. away, and she tripped and fell to the ground. S.F. then told defendant that he would "regret ever being born," and would "remember her for the rest of [his] life."
Defendant contends in Point I that the cumulative impact of the following testimony denied him a fair trial and warrants reversal of his convictions and a remand for a new trial:
On direct examination, Det. Peterson testified that after viewing S.F.'s injuries, the crime scene, and the SUV, he "had probable cause found with the victim [to charge defendant and obtain an arrest warrant], with what she said, the evidence we had against [defendant]. There was no reason for me not to believe the victim in this case[.]" He also testified that because this was a domestic violence matter, he was required to obtain a warrant for defendant's arrest, and he specifically identified to the jury what evidence he had relied on in applying for the warrant.
Relying on State v. Frisby, 174 N.J. 583 (2002), defendant argues that Det. Peterson improperly vouched for S.F.'s credibility, and his testimony had the potential to suggest to the jury that he had discovered additional inculpatory evidence that was presented to the judge in obtaining the arrest warrant.*fn4
We disagree with both contentions.
In Frisby, our Supreme Court reversed the defendant's convictions based upon testimony from investigating officers that: (1) recounted the out-of-court statements of non-testifying witnesses in contravention of hearsay rules; (2) falsely advised the jury that these statements "substantiated" the exculpatory statement of another suspect; and (3) informed the jury that the other suspect was "more credible" than the defendant. Frisby, supra, 174 N.J. at 595. By contrast, Det. Peterson did not convey hearsay statements of non-testifying witnesses to support S.F.'s credibility or corroborate her version of the attack; rather, he merely referred to S.F.'s statements as providing him with probable cause to charge defendant and obtain an arrest warrant.
In addition, it is not necessary that a jury always be shielded from knowledge that a warrant has been issued, since a properly instructed jury will not presume guilt based upon the issuance of a warrant. State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). A reference to a warrant is objectionable only where it has the capacity to mislead the jury and create the impression that the State presented additional evidence of guilt to the judge who issued the warrant. Ibid.; State v. McDonough, 337 N.J. Super. 27, 32-34 (App. Div.), certif. denied, 169 N.J. 605 (2001). Det. Peterson's testimony in no way suggested that additional unknown inculpatory evidence was submitted to the judge issuing the warrant.
Det. Peterson testified about his experience interviewing suspects. He said that he conducts interviews with an open mind, and there were past instances when he had interviewed a suspect, and released that person after deciding that he or she was not responsible for the crime. Defendant contends for the first time on appeal that this testimony expressed the detective's opinion that defendant was guilty because he did not release defendant after defendant's interview. Defendant also contends for the first time on appeal that this testimony was especially damaging because there was no verbatim recording of the interview. We review these contentions under the plain error standard of review, and will not reverse unless there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
We discern no plain error here. Prior to Det. Peterson's testimony, defense counsel suggested during Det. Diaz's cross-examination that the police had accepted S.F.'s version of what happened and concluded that defendant was guilty prior to interviewing him. Thus, Det. Peterson's testimony was proper rebuttal to that suggestion, and tended to show that he did not stop investigating even when a suspect was identified, or refuse to consider that his initial assessment of that person's guilt may be incorrect.
In addition, a jury could have inferred from Det. Peterson's testimony that he did not release defendant following the interview because he believed he had probable cause to continue to hold defendant. This was especially true because defendant admitted during the interview that he abducted S.F., hit and choked her, and had "rough sex" with her. The detective had no alternative but to detain defendant under these circumstances.
Further, the jury was properly instructed as to how to consider the lack of a verbatim recording of defendant's interview. Thus, no error, let alone plain error, occurred with respect to the challenged testimony.
Defendant contends for the first time on appeal that the judge erred in failing to sua sponte instruct the jury to disregard S.F.'s testimony that W.L.F. began screaming and crying when she saw her, and immediately said to her that she knew defendant "did that to [her]." Although the testimony was not proper, it did not lead to an unjust result. W.L.F. had testified about the cell phone incident where she overheard defendant telling someone not to call S.F. anymore because he was her boyfriend. She had also testified that she saw someone with a hat, whom she believed was defendant, sitting in the driver's seat of S.F.'s SUV when S.F. came home. This testimony implied W.L.F.'s belief about defendant's guilt.
In addition, W.L.F. testified at the trial, and thus, defendant had an opportunity to question her about her alleged statement to S.F. In any event, there was other overwhelming evidence of defendant's guilt.
Defendant contends for the first time on appeal that the judge erred in failing to sua sponte instruct the jury in accordance with N.J.R.E. 404(b) that they could not consider defendant's status as an illegal immigrant as proof that he had contempt for the law and was more likely to have committed the charged offenses. We disagree.
On cross-examination, S.F. initially denied that she threatened to report defendant to the immigration authorities. Defense counsel then confronted her with her statement to the police, where she admitted making such a threat because she was angry about what defendant had done to her. Following this testimony, defense counsel declined the judge's offer to give the jury a cautionary instruction pursuant to N.J.R.E. 404(b). In attacking S.F.'s credibility during summation, defense counsel mentioned S.F.'s testimony about the threat. In response, the prosecutor mentioned it in her summation as well.
We conclude that defense counsel's conscious choice to pursue the immigration issue and decline a cautionary instruction was a strategic decision that does not constitute grounds for reversal, State v. Morton, 155 N.J. 383, 443 (1998), or constitutes invited error, State v. Jenkins, 178 N.J. 347, 359 (2004). Further, the prosecutor's mention of the immigration issue in her summation was a proper response to defense counsel's summation. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub. nom., State v. Pantoja, 169 N.J. 610 (2001).
For the first time on appeal, in Point II defendant challenges the jury instruction on aggravated assault, N.J.S.A. 2C:14-2a(6). He argues that despite charging the jury in accordance with Model Jury Charge (Criminal), "Aggravated Sexual Assault - Physical Force or Coercion With Severe Personal Injury" (2008), with defense counsel's consent, the court erred in failing to explain to the jury how to assess "severe bodily injury." This contention lacks merit.
A person "is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person . . . [using] physical force or coercion and severe personal injury is sustained by the victim." N.J.S.A. 2C:14-2a(6). "'Severe personal injury' means severe bodily injury, disfigurement, disease, incapacitating mental anguish or chronic pain." N.J.S.A. 2C:14-1f. The Model Jury Charge does not clarify the definition of "severe personal injury" any further because "[n]o reported cases have yet construed it." Cannel, New Jersey Criminal Code Annotated, comment 6 on N.J.S.A. 2C:14-1 (2012). "In the absence of statutory definition, words are to be given their ordinary and well understood meaning." State v. Walker, 216 N.J. Super. 39, 42 (App. Div.), certif. denied, 108 N.J. 179 (1987).
The term "severe" is not particularly esoteric. It has been commonly defined with respect to a wound or injury as "grievous" and "inflicting pain or distress." Webster's Collegiate Dictionary 1073 (10th Ed. 1997). Here, there is no question that S.F. sustained an indisputably grievous injury to her vagina which required surgery and hospitalization and caused her much pain and distress. Given the nature and extent of S.F.'s injuries, there was no need for a further explanation of how to assess the meaning of "severe bodily injury."
Defendant challenges his sentence in Point III. At sentencing, the judge found and applied aggravating factor N.J.S.A. 2C:44-1a(9), "[t]he need for deterring the defendant and others from violating the law[,]" and mitigating factor N.J.S.A. 2C:44-1b(7), "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense[.]" Defendant argues that the judge erred in finding that the aggravating and mitigating factors were in equipoise, and should have sentenced him to a ten-year term of imprisonment for kidnapping, with a consecutive ten-year term of imprisonment for aggravated sexual assault.
We review a judge's sentencing decision under an abuse-of-discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). 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). As directed by the Court, this court 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).
We first note that a ten-year term of imprisonment for first-degree kidnapping was not an available option under N.J.S.A. 2C:13-1c(1), which sets the minimum term at fifteen years. In any event, we discern no abuse of discretion in defendant's sentence. Mitigating factor seven was not necessarily entitled to great weight, since defendant had only been in this country for a few years at the time of the offenses in this case, and it was unknown whether he had history of prior delinquency or criminal activity or led a law-abiding life in his native country. By contrast, aggravating factor nine was entitled to significant weight, given the grievous nature of the offenses defendant committed. The record supports the judge's finding and application of aggravating and mitigating factors, the sentence is in the mid-range for a first-degree crime, and the sentence does not shock our judicial conscience.
Defendant contends in Point IV that the judge should have merged his conviction for possession of a weapon for an unlawful purpose (count six) with his conviction for aggravated assault (count five). We agree that merger is required, but for a different reason.
Merger is required when, as here, the only unlawful purpose in possessing a weapon is to use it to commit the substantive offense. State v. Diaz, 144 N.J. 628, 636 (1996). The record in this case supports a merger of defendant's conviction under count six with his conviction under count two (aggravated sexual assault), not count five. Accordingly, we reverse that part of the sentence and any penalty, assessment or surcharge imposed on count six, and remand for the entry of a corrected judgment of conviction.
Defendant contends in Point V that the judge erred in ordering restitution without an ability-to-pay inquiry. Defendant does not dispute the amount of restitution ordered.
The court shall only order restitution if the defendant has a present or future ability to pay restitution. N.J.S.A. 2C:44-2b(2); see also State v. Newman, 132 N.J. 159, 169 (1993) (sentencing court must assess defendant's ability to pay prior to ordering restitution). A remand is necessary here to assess defendant's ability to pay, not to determine the amount of restitution ordered. See State in the Interest of R.V., 280 N.J. Super. 118, 124 (App. Div. 1995) (holding that where there is no dispute as to the proper amount of restitution, a restitution hearing should be limited to the issue of defendant's ability to pay). In the event the court finds that defendant presently has no means to pay the restitution, it may still order future payment of a reasonable portion of the amount in accordance with defendant's potential ability to pay at some later date. Ibid. Accordingly, we remand for an inquiry into defendant's ability to pay restitution.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.