On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-02-0262.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2012
Before Judges Parrillo, Grall and Skillman.
A jury found defendant James Zarate guilty of first-degree murder, N.J.S.A. 2C:11-3a(1)-(2); two counts of third-degree possession of a weapon (one a metal pole and the other a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; two counts of unlawful possession of a weapon (the metal pole and knife), N.J.S.A. 2C:39-5d; two counts of second-degree disturbing human remains for conduct on July 30 and July 31, 2005, N.J.S.A. 2C:22-1a(1); and two counts of third-degree hindering his own apprehension for conduct on July 30 and July 31, 2005, N.J.S.A. 2C:29-3b(1).*fn1
The judge merged defendant's convictions for unlawful possession of the metal pole and possession of that weapon for an unlawful purpose with his conviction for murder, and sentenced defendant to a term of imprisonment for life. That life term is subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also merged defendant's conviction for unlawful possession of the knife with his conviction for possessing it for an unlawful purpose, but did not merge that conviction with his conviction for murder. For the possession of the knife for an unlawful purpose, the judge sentenced defendant to a four-year term, consecutive to his sentence for murder. The judge imposed a second consecutive term of nine years for disturbing human remains on July 31, 2005.*fn2 The terms for defendant's remaining convictions are concurrent to his sentence for murder. Those sentences are: seven years for disturbing human remains on July 30; five years for hindering his own apprehension on July 30; and five years for hindering his own apprehension on July 31. The judge also imposed the appropriate VCCB and SNSF assessments and LEOTEF penalty.
Prior to defendant's trial, a jury found defendant's brother, Jonathan Zarate, guilty of murder, hindering apprehension, desecrating human remains, use of a juvenile to commit a crime, possession of a weapon for an unlawful purpose, and two counts of fourth-degree unlawful possession of a weapon. He was sentenced to an aggregate term of life imprisonment plus twenty-four years and assessed the appropriate fines and penalties. We affirmed his convictions on appeal but concluded that his conviction for possession of a knife for an unlawful purpose merged with his conviction for murder and remanded with direction for the trial court to vacate the consecutive sentence for that crime. State v. Zarate, No. A-3315-08 (App. Div. Jan. 27, 2012).
The victim of this homicide was a sixteen-year-old girl.
On the night she was killed, she and her parents were living next door to the house occupied by defendant's father and stepmother, his step-siblings and his eighteen-year-old brother Jonathan. Defendant, who was fourteen years old and would be fifteen within a month, was living with his mother at the time of the homicide, but he had previously lived in the home of his father and stepmother and was spending alternate weekends there. On the night the victim was killed, she and Jonathan communicated on the internet.
On Saturday morning July 30, 2005, the victim's parents could not find their daughter. At about 3:00 a.m. on Sunday, a police officer crossing a bridge over the Passaic River saw defendant, Jonathan, and his friend V.B., who was sixteen years old at the time, standing by the railing. They were about ten feet from a Jeep owned by defendant's father, which was parked near the center of the bridge. Defendant and V.B. were holding a footlocker at a height higher than the bridge's railing and were poised to toss it over. They dropped it on the bridge when they saw the police car and fled to the Jeep with Jonathan.
The officers reached the car before Jonathan was able to drive away. They detected a foul odor in the car and saw skin and a flannel shirt in the footlocker, which was partially open, and a cloth with "moist blood" in a garbage bag in the trunk. The footlocker contained the victim's body, but her legs from the knees down were in one of the two garbage bags in the Jeep. The other bag contained a dark-colored bandana, blood-stained paper towels, a T-shirt and sandals.
The medical examiner for Bergen County, Dr. Suanadan B. Singh, performed an autopsy. The victim's eyes, lips, cheeks and the right side of her forehead were swollen and bruised, her front teeth were loosened and there was significant bruising just beneath the spot where her ribs "curve[d] upwards and met." In Dr. Singh's opinion, the defused bruising in those areas indicated that the injuries were the result of blunt force and consistent with the impact of a "clenched fist."
There were additional blunt force injuries on her back, buttocks and the back of her left hand. Some of them were defused, but others showed the pattern of a blunt instrument - a "rod-like structure." There was no patterned bruising on the front of the victim's body.
Dr. Singh examined a metal pole discovered during a search of the Zarate's split-level home that was used to secure a sliding door in the family room of the lower floor, where the bedroom shared by defendant and Jonathan was located behind folding doors. The victim's blood was on that pole. In Dr. Singh's opinion, the circular bruises on the back of the body were consistent with that pole being jabbed against the back and the linear cylindrical bruises, like the one on the back of her left hand, were consistent with being "whacked" with the pole.
There were other injuries. The body also had wounds caused by a knife. Dr. Singh examined a knife found during the search of defendant's and Jonathan's bedroom, and found it to be consistent with the knife wounds he found on the body. That knife had fallen from a pair of jeans when an officer lifted them off the floor of the bedroom. The jeans had the victim's blood on them, and defendant could not be excluded as the source of DNA recovered from their waistband.
One knife wound was on the palm-side of the fingers on the right hand. Dr. Singh concluded that those cuts were consistent with a wound acquired by grabbing and holding the blade of the knife to defend against a stabbing. In his opinion, the cut along the palm-side of the fingers explained why other knife wounds did not penetrate deeper than they did; the fingers were grasping the knife on its blade beneath the handle.
There were two additional stab wounds on the neck, one on the left side and one that was on the left but closer to the front midline, which had penetrated the soft tissue of the upper chest. Additionally, there was a third penetrating stab wound in the "left abdominal region." That wound went from the left, toward the midline and downward, and it penetrated to a depth of
There was another "circumferential" knife wound - one that "almost encircle[d] the entire thigh." It was between 3.5 and 5 centimeters wide and at a depth that almost reached the joints and femur.
In addition, food from the digestive tract and blood from the head wounds had been aspirated and were found in the victim's lungs. In Dr. Singh's opinion, the cause of death was "aspiration of the foreign material and blood into her lungs." The blunt and sharp force injuries contributed to her death through the loss of blood via the open wounds and the bruised tissue.
Dr. Singh had opinions on the victim's position when the injuries were inflicted, the sequence of the various injuries and the number of assailants. His testimony about the number of assailants was given over defendant's objection. Those opinions were as follows.
Based on the angle of the knife wounds, the positioning of the patterned bruises on the back of the body and the force of the blow sufficient to cause the bruising beneath the ribcage, the victim was standing when she sustained the stabs to her neck and abdomen and the bruising in the pattern of the pole on her back. The stabbing to the neck and abdomen was done by a person standing in front of the victim. The striking and jabbing with the pole were done by a person standing behind her because the strikes and jabs that caused the bruises were found only on her back in places that could not have been hit by a person facing her.
As to sequence, the knife wounds to the neck and abdomen were inflicted before the blows to her head and abdomen because the victim would not have been able to defend herself from the stabbings by grabbing the knife after receiving those blows. The patterned bruises on her back were inflicted before the blow beneath the ribcage. That blow was delivered with sufficient force to push food in the digestive tract into the throat, cause cardiac arrhythmia and unconsciousness and a resulting fall.
Dr. Singh concluded the victim fell back, not forward, because there were no injuries consistent with a forward fall.
Furthermore, if she had not fallen back after losing consciousness due to the ribcage-blow, she would not have aspirated the food from her digestive tract and blood from the head injuries into her lungs.
Dr. Singh also concluded that the blunt and sharp force injuries to the neck, abdomen, back and area beneath the ribcage were inflicted before the victim died. That opinion was based on the blood that flowed into the surrounding tissue and skin and on the aspiration of blood and food, which would not have occurred unless she was breathing.
Dr. Singh's opinion that the victim was attacked by "at least two people" was based on his conclusion that the blows with the pole and the stabs to the neck and abdomen were all "fresh pre-mortem wounds" inflicted simultaneously and before the fall to the floor. In his opinion, that conclusion flowed from the absence of bruising in the pattern of pole blows on the front of the body.
The judge permitted Dr. Singh to state the foregoing opinions in his testimony at trial after hearing testimony at a preliminary hearing and determining that the opinions were supported by adequate evidence and reasons given by the doctor, stated to a reasonable degree and would help the jury "understand the issues in this case." The judge did not permit Dr. Singh to testify that he had also reasoned that the victim was not facing the person attacking her with the pole because she was fending off the person attacking her with the knife. The judge determined that this conclusion was within the understanding of the jurors.
The issues and the parties' respective positions were outlined for the jurors in a stipulation. It provided:
There has been a stipulation by and between the parties that Jonathan Zarate was charged and stood trial alone previously. He was convicted by a jury of murder and other crimes. These defendants [Jonathan and defendant] are being tried separately for the same crime.
The State contends that the defendant in this case acted together with Jonathan Zarate in the murder of [the victim].
The defense contends that Jonathan
Zarate acted alone and was the only person responsible for the murder. Do not speculate why they are being tried separately. Do not consider that fact in your deliberations.
The State also presented evidence of defendant's motive. Two years before the victim was killed, while defendant was living with his father, the victim and defendant were in the same remedial classes at school. According to the victim's mother, defendant teased and picked on her. The mother reported this to school officials and ultimately took it upon herself to direct defendant to leave her daughter alone. The following day a brick was thrown through the rear window of her car. Consequently, defendant was charged as a juvenile with criminal mischief, but the complaint was dismissed. After that incident, defendant went to live with his mother. The victim's mother acknowledged that defendant had not bothered her daughter since.
V.B. testified on behalf of the State. He had agreed to cooperate with the State and plead guilty to a charge of delinquency based on acts that would amount to conspiracy and disposal of body parts if he were an adult. When he testified at trial, V.B. was awaiting the dispositional hearing at which a judge of the Family Part would decide what consequences to impose based on that plea. V.B. testified that before he went to the bridge with Jonathan and defendant, they told him that they had both played a role in the girl's death - Jonathan doing the punching and defendant doing the stabbing. According to
V.B., he did not believe their story until he was in the Jeep and "started smelling the smell." When Jonathan directed V.B. to help defendant with the footlocker, he reluctantly agreed.
In statements V.B. made to the police before he decided to cooperate with the State, he initially denied knowledge of the footlocker's contents and later said that Jonathan had told him he killed the girl and did not mention that defendant participated. Those statements were also introduced at trial.
Defendant did not testify. Instead, the defense introduced a statement that he gave to the police after his arrest. In it, defendant said Jonathan told him to leave the family room when the victim came to the door, and he went to sleep on the couch. He awoke when he heard "big thumps." Jonathan then asked him to help put a footlocker in the Jeep, and defendant thought that the victim was inside it. Defendant also said that Jonathan told him that he had hit her with a doorstop, stabbed her, put a bandana in her mouth to muffle her screams, and cut off her legs because they would not fit in the trunk.
Defense counsel raises these issues:
I. THE COURT ERRED IN PERMITTING THE MEDICAL EXAMINER TO GIVE AN OPINION AS TO THE NUMBER OF ...