On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-06-0707.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Simonelli and Hayden.
Defendant was convicted of breaking into Majoly Collins's apartment, robbing her, raping her at knife point, stabbing her to death, smothering to death her two young children, and attempting to stab to death a fourth victim. That victim survived to testify at defendant's trial, where she identified him as the attacker.*fn1 The State also introduced at trial the four separate confessions defendant made after repeatedly being advised of, and waiving, his Miranda*fn2 rights. After merger, defendant was sentenced to three consecutive terms of life in prison, a twenty-year consecutive term, and a concurrent term of twenty years.
Defendant appeals from the conviction and the sentence, raising the following appellate issues:
POINT I: DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENTS TO POLICE SHOULD HAVE BEEN GRANTED.
POINT II: A MISTRIAL SHOULD HAVE BEEN GRANTED BECAUSE OF IMPROPER RE-OPENING OF PEREMPTORY CHALLENGES BY THE PROSECUTION.
POINT III: THE ADMISSION OF HEARSAY STATEMENTS VIOLATED THE RULES OF EVIDENCE AND DEFENDANT'S CONSTITUTIONAL RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.
POINT IV: THE IDENTIFICATION TESTIMONY PERMITTED AGAINST DEFENDANT WAS IMPROPER AND VIOLATED DEFENDANT'S DUE PROCESS RIGHTS.
POINT V: THE PROSECUTOR EXCEEDED FAIR COMMENT AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT VI: DEFENDANT'S RIGHT TO A FAIR JURY TRIAL WAS VIOLATED BECAUSE AN EMPANELLED JUROR WAS DISMISSED WITHOUT SUFFICIENT CAUSE DURING TRIAL.
POINT VII: THE TRIAL COURT ERRED IN DENYING THE DEFENSE REQUEST FOR A CROSS-RACIAL CHARGE.
POINT VIII: DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
In a supplemental pro se brief, he raises these issues:
POINT I: THE TESTIMONY OF THE STATE'S EXPERT WITNESS, DR. CHARLOTTE WORD CONCERNING HER OPINION REVIEW FINDINGS OF FORENSIC SUPERVISOR PAULA CLIFTON'S ACTUAL LAB WORK NOTES AMOUNTED TO INAPPROPRIATE HEARSAY WHICH DEPRIVED DEFENDANT OF HIS RIGHT TO CONFRONTATION AS WELL AS HIS SIXTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRAIL PURSUANT TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION (U.S. CONST. AMEND. XIV; N.J. CONST. (1947)). THEREFORE THE CONVICTION SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.
POINT II: THE PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL;
THE PROSECUTOR I/ DURING CLOSING SUMMATIONS IMPROPERLY INTERJECTED HIS PERSONAL BELIEFS AND IMPROPERLY VOUCHED FOR STATE'S WITNESSES; II/ IMPROPER SPECULATION AND MISSTATEMENTS BY THE PROSECUTOR IN SUMMATIONS ON EVIDENCE THAT WAS NOT BASED ON THE EVIDENCE ADDUCED AT TRIAL; III/ THE CUMULATIVE EFFECT OF PROSECUTOR'S EGREGIOUS ERRORS MANDATES A REVERSAL OF EACH OF THE CONVICTIONS.
Subpoint 1. The Prosecutor During Summations Improperly Interjected His Personal Beliefs And Improperly Vouched For The State's Witness.
Subpoint 2. The Prosecutor Improperly Speculated And Misstated During Summation On Evidence That Was NOT Based On The Evidence In The Record That Was Adduced At Trial.
Subpoint 3. The Cumulative Effect Of The Prosecutor's Errors Mandates A Reversal On Each Of The Convictions.
POINT III: THE LOWER COURT'S VERDICT MUST BE REVERSED SINCE THE CUMULATIVE ERRORS RENDERED THE TRIAL UNFAIR AND DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
Having carefully reviewed the record, we find no merit in any of these arguments, and we affirm the conviction and the sentence.
This was the most pertinent trial evidence. S.V.,*fn3
who was twenty-one years old at the time, was from the
Dominican Republic and spoke only Spanish. Six months before the
murders, she had come to the United States to live with an aunt. But
on the night of December 6, 2002, she was sleeping over at Collins's
apartment and helping Collins care for her children.
Between 6:00 and 6:30 a.m. on December 7, 2002, S.V. called 9-1-1 and reported that a man had broken into Collins's apartment, had stabbed her and had done something to Collins and Collins's children, Catherine (eighteen months old) and Eduardo (four years old). The recording of the 9-1-1 call was played for the jury.
On arriving at Collins's two-bedroom apartment, the police found Collins and her children dead in the bathtub, which had been filled with water. Collins had been stabbed multiple times and there was blood throughout the apartment. Blood stained pillows from the living room couch were on the floor, along with various pieces of clothing.
Around 6:45 a.m., an ambulance transported S.V. to a hospital. Dr. Kaul, the attending trauma surgeon who treated S.V., said that she had "multiple injuries to her neck," which resulted in pulsatile bleeding, or "bleeding that is spurting out very rapidly and requires firm digital pressure to prevent" death. Her carotid artery, the artery that supplies blood to the brain, had been cut, and she had injuries to her throat muscles. She had gone into shock, and her core body temperature was 93 degrees Fahrenheit.
S.V. was immediately taken to the operating room where Dr. Kaul repaired the cut artery and the damage to her throat. After the surgery, she was kept on a respirator because the shock that her body had gone into would have inhibited her ability to breathe on her own. Because she had a tube in her mouth she could not talk. Dr. Kaul opined that if S.V. had not been transported to the hospital, she would not have lived more than ten to fifteen minutes.
Detective Ismael Olivero arrived at the scene around 7:40 a.m. At that time, defendant was sitting in a police car with two children. He lived in the apartment below Collins's apartment with his sister, Kinaya Houston (Kinaya), her husband, Tony Houston (Houston), and their two children.
Everyone who was inside the apartment had been evacuated because smoke was detected in the building. An officer offered defendant and the children a police car to sit in because it was cold outside. Police then transported defendant and Kinaya to headquarters for questioning as potential witnesses.
At headquarters defendant told Olivero that the night before, he had worked until 9:00 p.m. and got home around 10:00 p.m. He watched some television then went to sleep. During the night he did not hear anything from the apartment above. After this brief questioning, Olivero questioned Kinaya, who gave a different account of defendant's whereabouts.
At 12:30 p.m., Olivero conducted a second interview with defendant. He advised defendant of his Miranda rights, and defendant initialed each right to show that he understood them. He waived his rights and agreed to speak with Olivero without an attorney present. Defendant told Olivero that when he got off of work, he went to a girl's house with a guy named Otis. He came home around 10:00 p.m. and went to bed.
Defendant took off his coat, and Olivero saw two blood stains on the right side pocket of his pants. Olivero told defendant that according to Kinaya, defendant did not come home until about 6:00 a.m. that morning. Defendant said that he went home at 10:00 p.m., but he did not have a key to the apartment and Kinaya did not like when he knocked on the door or window at that late hour. So he went back to Linden, where his friends lived.
Then Olivero told defendant that one of the victims was at the hospital, and the doctors expected her to live. Olivero said that she would probably be able to identify the attacker. According to Olivero, the "first thing he [defendant] did . . . was ask me [Olivero] about jail time." Olivero said that he could not speculate about jail time; he had nothing to do with jail time. Defendant "put his head on the table and first thing he said [was that] it wasn't supposed to happen this way." Then defendant gave another account of what he had done the night before.
Defendant told Olivero that when he went back to Linden, he ran into his cousin, Jahad. Jahad said he wanted to rob someone, and defendant said he knew a place to rob. They went to Collins's apartment, defendant knocked on the door, and Collins answered. Defendant asked to use her phone, and when she said no, he pushed open the door. He gathered all the people in one room and asked ...