August 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES ZARATE, A/K/A NAVAJAS ZARATE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ASSAILANTS INVOLVED IN THE MURDER.
II. THE JURY INSTRUCTIONS WERE RIDDLED WITH ERROR DUE TO MODIFICATIONS TO THE MODEL CHARGES AND MISAPPLICATION TO CERTAIN OFFENSES. (Not Raised Below).
A. The Court's Modification To The Model Charges Of Prior Inconsistent Statements, Consistent Statements And Co-Operating Co-Defendant Statements, Precluded An Unbiased Evaluation of [V.B.]'s Testimony.
B. The Accomplice-Liability Charge Was Not Tailored to The Facts Of The Case, And Failed to Explain How The Accomplice Theory Applied To The Lesser-Included Offenses.
C. It Was Incorrect To Charge Co- Conspirator Liability To The Offenses Of Unlawful Possession Of A Weapon.
D. It Was Incorrect To Charge Accomplice And Co-Conspirator Liability To The Offense Of Hindering One's Own Apprehension.
III. IMPERMISSIBLE REFERENCE WAS MADE TO THE SEARCH WARRANT OBTAINED FOR THE ZARATE HOUSE INFERRING THAT THE INSTANT TRIAL JUDGE HIMSELF, WHO HAD ISSUED IT, FOUND EVIDENCE OF THE DEFENDANT'S GUILT. (Not Raised Below).
IV. THE PROSECUTOR SOUGHT TO INFLAME THE PASSIONS OF THE JURORS AND UNFAIRLY ATTACKED THE CHARACTER OF THE DEFENDANT IN SUMMATION. (Not Raised Below).
V. THE DEFENDANT, WHO WAS 14 YEARS OF AGE AT THE TIME OF THE CRIME, RECEIVED A MANIFESTLY EXCESSIVE SENTENCE OF LIFE PLUS 13 YEARS.
In a pro-se supplemental brief, defendant argues:
I. THE COURT COMMITTED ERROR WHEN THEY MODIFIED THE MODEL JURY CHARGE ON FLIGHT, DEPRIVING THE DEFENDANT OF A FAIR TRIAL.
Defendant argues that the trial court erred in permitting Dr. Singh to offer an opinion on the number of assailants involved in this homicide. He contends the expert opinion was unnecessary and improperly admitted because it addressed the ultimate issue - whether he had participated in the homicide.
"The necessity for, [and] propriety of, the admission of expert testimony, and the competence of such testimony, are judgments within the discretion of the trial court." State v. Zola, 112 N.J. 384, 414 (1988); see State v. Moore, 122 N.J. 420, 459 (1991) (noting the "admission of expert testimony, and its competence, are discretionary" determinations). In explaining the mechanics of death, experts in forensic pathology may describe instrumentalities and physiological causes of injuries and death, the location of injuries and the position of the victim when injured, bruise patterns and objects consistent with them, the effect of injuries on internal systems, bullet wounds and their effect on internal systems. See State v. Jamerson, 153 N.J. 318, 337-38 (1998) (discussing the permissible range of such expert testimony and illustrative cases). We find no abuse of discretion in the judge's decision to allow Dr. Singh to testify that more than one person was involved would be helpful to the jurors.
Expert testimony is admissible if it is "in the form of an opinion that 'will assist the trier of fact to understand the evidence or to determine a fact in issue.'" State v. McLean, 205 N.J. 438, 449 (2011) (quoting N.J.R.E. 702). It may not be offered on a matter that is "straightforward," commonplace and within the understanding of the ordinary jury. Id. at 453.
This opinion at issue was based on Dr. Singh's opinions about the temporal relationship between the numerous pre-mortem injuries, their contribution to the death, and the position of the victim and the attackers when they were inflicted. Knowledge of forensic medicine was essential to understanding these things and how the forensic evidence led the expert to conclude that the "fresh pre-mortem" injuries from both the stabs to the neck and abdomen and the blows to the back with a pole were inflicted simultaneously by an attacker standing behind her and an attacker facing her. In admitting that opinion but precluding Dr. Singh from explaining why he believed the victim did not run from or defend against the attacker with the pole, the judge permitted Dr. Singh to give an opinion within his expertise and useful to the jurors, and he avoided the risk of misleading the jurors inherent to allowing an expert to opine on a matter not requiring that expertise. In re Hyett, 61 N.J. 518, 531 (1972).
Defendant correctly argues that an expert in a criminal case may not invade the province of the jury by stating an opinion on the defendant's guilt or innocence or "otherwise invade the province of the jury to decide the ultimate question." McLean, supra, 205 N.J. at 453; accord State v. Papasavvas, 163 N.J. 565, 613 (2000); Jamerson, supra, 153 N.J. at 340. While the stipulation read to the jury, which is quoted above, indicated defendant's assertion that Jonathan acted alone, the question for the jury was not whether Jonathan acted alone but whether defendant caused or contributed to the death or otherwise aided or abetted Jonathan in the commission of the homicide. Dr. Singh did not state an opinion on those questions.
For the first time on appeal, defendant objects to the jury instructions. Because there was no objection at trial, defendant must demonstrate "the error was clear and obvious and that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998); see R. 2:10-2. Defendant has not made that showing.
A. Error in the charge on prior consistent and inconsistent statements.
Defendant's first claim is based on the court's omission of a single paragraph of the Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994). The omitted paragraph addresses the possible reasons the witness gave for making prior statements that were untrue or omitting facts that were true. It states:
In regard to the testimony of (witness' names) on cross-examination inconsistencies were shown (admitted) between the prior statements and those given on the stand [or: between the witness's prior silence and statements on the stand.] The witness(es) gave reasons therefor, saying that [many of] such prior statements or omissions were untrue. Among the reasons given that I recall, were (list reasons: self protection, exculpation, poor recollection at the time, things recently remembered and not, therefore, formerly disclosed, not believing a matter was important, etc.)
During cross-examination, V.B. acknowledged that there were facts implicating defendant that he had never disclosed before testifying at trial and facts that he had previously described differently. In explaining the omissions, V.B. said he was protecting himself when he first spoke to the police, then omitted a description of what defendant had done because Jonathan had said he would take the full blame and defendant was his friend, and when he decided to cooperate he omitted things he did not remember at the time.
Although the judge did not instruct the jurors in accordance with the paragraph set forth above, he did direct the jurors to consider "the reasons, if any, given" for the inconsistency or omission. Thus, the instruction read as a whole, State v. Robinson, 165 N.J. 32, 47 (2000), provided a complete statement of the legal principles.
Given the straightforward reasons V.B. offered, defense counsel's cross-examination suggesting their implausibility and the fact that the jurors were directed to consider the reasons, the abbreviated charge was not "clearly capable of producing an unjust result." R. 2:10-2. In short, there is no reason to suspect that the jurors would have given less weight to V.B.'s trial testimony if the judge had given a fuller explanation.
Defendant also claims that the delivery of instructions on considering consistent and inconsistent statements "effectively nullified the previous cautions to the jury on dealing with prior inconsistent statements." The argument offered in support of that claim is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
B. Error in omission of an instruction on V.B.'s guilty plea.
Defendant argues that because the judge erred by omitting an instruction on the significance of V.B.'s guilty plea, reversal is required. His argument overlooks the fact that V.B. testified that he pled guilty to a juvenile charge based on conspiracy and disposal of body parts, not to homicide. It also fails to account for the fact that the State's evidence of defendant's effort to throw the body off the bridge was overwhelming and uncontested. Considering those facts, we conclude the omission, which passed without objection, is harmless. State v. Adams, 194 N.J. 186, 208-09 (2008) (noting that jurors should be directed that they may not consider a co- defendant's guilty plea as evidence of the defendant's guilt but finding the omission harmless for similar reasons).
C. Error in the jury instruction on complicity relevant to the homicide charges.
Although defendant did not object at trial, he now contends that his conviction should be reversed because the judge did not "tailor" the complicity charge "to the facts of the case," or explain "how the accomplice theory applied to the lesser-included offenses of murder." The record does not support these claims.*fn3
First, the judge provided a factual context for the complicity charge by reiterating the parties' stipulation setting forth their respective positions. The State's contention was that defendant and Jonathan acted together and defendant's contention was that Jonathan "acted alone and was the only person responsible for the murder."
Given the evidence in this case, any effort by the judge to further relate the parties' factual assertions to the charges would not have been productive or beneficial to the defense. The only evidence supporting defendant's version was V.B.'s out- of-court statement asserting that Jonathan acted alone, which he later disavowed, and defendant's own statement indicating that he was asleep on the couch during the entire attack and did not wake up until Jonathan had the body in the trunk. In contrast, the State's position was supported by V.B.'s trial testimony, Dr. Singh's opinion that at least two persons simultaneously attacked the victim with a knife and pole, and the evidence of the victim's blood on jeans that had defendant's DNA on the waistband.
The primary question presented by the evidence was whether defendant participated or was asleep and played no role in the death. There was no factual dispute about the nature of the various assaults that caused the injuries that could be used to illustrate the states of mind that distinguish murder, aggravated manslaughter and reckless manslaughter. See State v. Jenkins, 178 N.J. 347, 363 (2004) (discussing the mental states for serious bodily injury murder committed purposely, N.J.S.A. 2C:11-3a(1); serious bodily injury murder committed knowingly, N.J.S.A. 2C:11-3a(2); aggravated manslaughter, N.J.S.A. 2C:11-4a(1); and reckless manslaughter, N.J.S.A. 2C:11-4b(1)); State v. Cruz, 163 N.J. 403, 417 (2000) (distinguishing the mental states required to establish purposeful murder, N.J.S.A. 2C:11-3a(1); knowing murder, N.J.S.A. 2C:11-3a(2); and aggravated manslaughter, N.J.S.A. 2C:11-4a(1)). Thus, there were no differing interpretations of the facts that could be used to explain how the jurors could find defendant guilty of aggravated or reckless manslaughter. Cf. State v. Bielkiewicz, 267 N.J. Super. 520, 533-34 (App. Div. 1993) (noting the judge's failure to tell "the jury what view of the facts could lead" them to convict an accomplice of a lesser offense in a case involving a physical altercation that escalated to a shooting).
The undisputed evidence was that this victim died as a consequence of being stabbed with a knife, beaten with a pole and punched multiple times. The first question for the jury to resolve was whether defendant participated. The judge highlighted that factual inquiry, and the jurors obviously concluded that he did because there was no evidence that defendant otherwise lent aid or encouragement to Jonathan in the killing.
The second question was which one of the forms of homicide at issue, if any, the State proved beyond a reasonable doubt that defendant committed by participating. With respect to murder, the State had to show that defendant intended to kill, knew he would kill, or intended to or knew he would cause serious bodily injury and knew that there was a high probability death would follow. Jenkins, supra, 178 N.J. at 363; Cruz, supra, 163 N.J. at 417. To establish aggravated manslaughter, the State had to show that he acted with conscious disregard of a probability of death. Jenkins, supra, 178 N.J. at 363. And, to prove reckless manslaughter, the State would have to show he acted with disregard of a "possibility" of death. Ibid.; State v. Breakiron, 108 N.J. 591, 605 (1987). In instructing the jury on these homicide offenses, the judge made it clear that defendant's guilt depended on the consequences he intended, knew or risked.
The judge then gave an instruction on accomplice liability for murder. Contrary to defendant's claim, the judge made it clear that to convict defendant of murder, the jurors had to find that the State proved he, not Jonathan, acted with purpose to or knowledge that death would result. The judge directed the jurors that they could find defendant guilty of murder if the State proved:
One, that Jonathan Zarate committed the crime of murder. Two, that this defendant solicited Jonathan Zarate to commit it, or did aid, or agree, or attempt to aid him in planning or committing it, that this Defendant's purpose was to promote or facilitate the commission of the offense, and that this defendant possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act, that is the knowledge or purpose to cause death or serious bodily injury resulting in death as I have previously defined those terms to you.
The judge cautioned, defendant "can be held to be an accomplice with equal responsibility only if you find as a fact that he possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act." See State v. Hill, 199 N.J. 545, 567-68 (2009). The judge elaborated:
Our law recognizes that two or more persons may participate in the commission of an offense, but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his own state of mind and . . . not anyone else's. [See also ibid. (quoting State v. Fair, 45 N.J. 77, 95 (1965)).]
With respect to aggravated and reckless manslaughter, the judge instructed:
In considering whether the defendant is guilty or not guilty as an accomplice on these lesser charges, remember that each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his own state of mind and no one else's.
Therefore, in order for you to find the defendant guilty of the lesser-included offenses of aggravated manslaughter or reckless manslaughter, the State must prove beyond a reasonable doubt that Jonathan Zarate committed the crime of murder, that this defendant . . . solicited Jonathan Zarate to commit aggravated manslaughter or reckless manslaughter, or did aid, or agree, or attempt to aid him in planning or committing aggravated or reckless manslaughter.
And remember once again you have to consider them separately; . . . that this defendant's purpose was to promote or facilitate the commission of aggravated manslaughter or reckless manslaughter, that this defendant possessed the criminal state of mind that is required for the commission of aggravated manslaughter or reckless manslaughter.
The judge asked the jurors if they wanted him to repeat the elements of these lesser-included offenses again, and they indicated that they did not. When they asked for a repetition of the elements during deliberations, one was given. At the jury's request, it also was reinstructed on accomplice liability. That instruction included direction that the "liability or responsibility of each participant for an ensuing offense is dependent on his own state of mind and not on anyone else's."
Having considered the jury instructions in light of defendant's arguments, we find no support for his claims of error. We also note that during the lengthy conference on the jury charge, defense counsel repeatedly urged the judge not to reiterate the instructions concerning accountability for the acts of others or the elements of the crime. In defense counsel's view, the repetition would have been both confusing and prejudicial.
D. Error in charging co-conspirator liability for possession of a weapon for an unlawful purpose.
Defendant argues that the court erred in permitting the jurors to consider whether he was guilty of possessing the pole and knife for an unlawful purpose because he and Jonathan conspired to commit that crime. He presents two arguments, and we address them separately.
He first argues that it is error to instruct the jury on accomplice liability in the context of a possessory offense, where liability may be based on individual, joint and constructive possession. This court, however, has held that conspiratorial liability for a possessory offense may attach even though liability for the substantive crime based on complicity would not because of the absence of proof that the defendant had any control over the object or did anything to aid in his co-conspirator's possession. State v. Roldan, 314 N.J. Super. 173, 188-90 (App. Div. 1998).
Defendant also contends that conspiracy requires proof of agreement and purpose not required for the substantive crime. That argument overlooks the fact that the jurors were directed on the elements of conspiracy. Although defendant was not charged with the crime of conspiracy, N.J.S.A. 2C:5-2, a conspiracy to commit a crime charged in the indictment is a lesser-included offense of that crime, and if there is a rational basis, the jury may be asked to consider conspiracy to commit the crime. State v. Cagno, ___ N.J. ___, ___ (Aug. 8, 2012) (slip op. at 44).
This jury was given proper direction on the elements of conspiracy to commit the crime of possession of a weapon for an unlawful purpose. After defining the elements of the possessory offense, the judge told the jurors that there was a separate basis for finding defendant guilty of these charges - his "legal accountability for the conduct of another [with whom] he is engaged in a conspiracy" to commit these crimes, which the judge identified "as possession of a weapon for an unlawful purpose." The judge then gave the jury a complete instruction on the elements of conspiracy to commit that crime.
Contrary to defendant's claim, there is evidence that would permit a jury to find an agreement. We refer to V.B.'s testimony about the defendant's statement disclosing their plan to kill and his hiding until Jonathan was holding the victim, and to Dr. Singh's testimony about the simultaneous attacks with the knife and pole.*fn4
E. Error in the accomplice and co-conspirator charge on hindering his own apprehension.
Defendant also claims the court erred by allowing the jurors to find him guilty of hindering his own apprehension based on conduct of another for which he was "legally accountable" pursuant to N.J.S.A. 2C:2-6a, b(3)-(4). He argues that because the Legislature has defined two separate crimes - one for hindering one's own apprehension, N.J.S.A. 2C:29-3b, and one for hindering another's apprehension, N.J.S.A. 2C:29-3a, the Legislature cannot have intended the principles of vicarious liability set forth in N.J.S.A. 2C:2-6b(3)-(4) to be applied to these crimes.
We find nothing in the statutory language defining the crime or the circumstance under which a person may be held accountable on the basis of another's conduct that supports this argument. In pertinent part, N.J.S.A. 2C:29-3 provides:
a. A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another . . . he:
(3) Suppresses, by way of concealment or destruction, any evidence of the crime, . . . which might aid in the discovery or apprehension of such person or in the lodging of a charge against him;
b. A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense . . . he:
(1) Suppresses, by way of concealment or destruction, any evidence of the crime . . . , which might aid in his discovery or apprehension or in the lodging of a charge against him;
The existence of a crime for hindering one's own apprehension and a crime for hindering the apprehension of another does not suggest that the Legislature intended to exempt a defendant who conceals the evidence by soliciting another to assist or do it for him. There is no discernible basis for such a conclusion. True, the crime of hindering one's own apprehension is defined in terms of actions the person hindering his own apprehension must take. But this crime is part of the Criminal Code and subject to the statutes establishing its general principles of liability, N.J.S.A. 2C:1-1 to 2-12, including principles of liability for the conduct of another, N.J.S.A. 2C:2-6. Pursuant to that statute,
a. A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both. [(Emphasis added).]
Accordingly, there was no need for the Legislature to specify that a defendant could be guilty of this crime by having another, such as V.B. or Jonathan, perform the essential acts or help with them. As the Code's drafters explained, the "basic principle" is "that criminal liability may be based upon either one's own behavior or the behavior of another." New Jersey Criminal Law Revision Commission, the New Jersey Penal Code, Vol. II: Commentary, cmt. 2 on 2C:2-6 at 56 (1971) (hereinafter Commentary).
Defendant's liability for the conduct of Jonathan and V.B. depended on whether he was "legally accountable" for it.
N.J.S.A. 2C:2-6 provides:
b. A person is legally accountable for the conduct of another person when:
(1) Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct;
(3) He is an accomplice of such other person in the commission of an offense; or
(4) He is engaged in a conspiracy with such other person.*fn5
Paragraph b(1) "recognize[s] that a person is no less guilty . . . of an offense because he uses the overt behavior of" another even if that person "is innocent or irresponsible." Commentary, supra, cmt. 3(1) on 2C:2-6 at 56.
Defendant's liability was submitted to the jury pursuant to N.J.S.A. 2C:2-6b(3) - as an accomplice. Defendant's argument - that he could not be an accomplice with V.B. and Jonathan to this crime - is semantic not legal. The term "accomplice" is "employed" here in its "broadest and least technical" sense, consistent with the abandonment of distinctions between principals and accessories. See Commentary, supra, cmts. 3(3), 4 on 2C:2-6 at 57. N.J.S.A. 2C:2-6c "sets forth the modes and extent of complicity in criminal behavior, delineating both the nature of the action or omission and the mental state that will suffice for liability." Id. at cmt. 4. It provides:
c. A person is an accomplice of another person in the commission of an offense if:
(1) With the purpose of promoting or facilitating the commission of the offense; he
(a) Solicits such other person to commit it; [or]
(b) Aids or agrees or attempts to aid such other person in planning or committing it . . . . [N.J.S.A. 2C2-6c].
Even if we were to assume that V.B. and Jonathan would have been convicted of a different crime, hindering the apprehension of another, the statute makes that irrelevant. N.J.S.A. 2C:2-6f provides: "An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense . . . ."
Moreover, the fact that N.J.S.A. 2C:29-3b applies only to persons hindering their own apprehension is irrelevant. Any legal incapacity of V.B. and Jonathan to commit that crime would not preclude their conviction for aiding defendant in its commission. N.J.S.A. 2C:2-6d (providing that a person "legally incapable of committing a particular offense himself may be guilty" based on the actions of a person for whose conduct he is legally accountable); see State v. Hinds, 143 N.J. 540 (1996) (official misconduct). Thus, contrary to defendant's claim, he can be liable for soliciting, agreeing to assist or assisting others "in planning or committing" this crime with him.
N.J.S.A. 2C:2-6c(1)(b). This principle of accountability applies to conspiracy as well. See N.J.S.A. 2C:5-3a(1) (providing that the fact that one party to a conspiracy "does not occupy a particular position or have a particular characteristic which is an element of such crime" is immaterial so long as the actor "believes that one of them does").
Although there was no objection at trial, defendant urges us to reverse his convictions because three officers mentioned that the judge had issued a warrant authorizing the search of the Zarate home. That warrant was issued after defendant and Jonathan were arrested on the bridge while in possession of the victim's dismembered corpse.
While the references to the warrant were unnecessary, especially the testimony of a detective who described the process, and were neither passing nor fleeting, the absence of an objection permits us to assume that defense counsel did not consider the testimony prejudicial. State v. Macon, 57 N.J. 325, 333 (1971). Given the circumstances, that assumption is well-warranted here.
Viewed in light of the fact that the Zarate brothers were found with the victim's remains and arrested prior to the search, the subsequent issuance of a search warrant is unremarkable. We are confident the testimony had no capacity to deprive defendant of a fair trial or lead to an unjust result.
R. 2:10-2; compare State v. Williams, 404 N.J. Super. 147, 166-69 (App. Div. 2008), certif. denied, 201 N.J. 440 (2010) (finding no error in reference to a search warrant), with State v. Alvarez, 318 N.J. Super. 137, 145-48 (App. Div. 1999) (reversing on the ground that the testimony implied that the judge had been given evidence not presented to the jury).
The arguments presented to establish error in the flight charge and the State's summation lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant claims that his aggregate sentence, a 114-year term of imprisonment, is excessive. We conclude that this sentence must be reduced by nine years because the consecutive sentence for possession of a knife for an unlawful purpose must be merged with defendant's conviction for murder. In addition, we remand for resentencing and direct the judge to address mitigating factor thirteen, N.J.S.A. 2C:44-1b(13) - "The conduct of a youthful defendant was substantially influenced by another person more mature than defendant."
In reviewing Jonathan's sentence, we directed merger of his convictions for murder and possessing a weapon for an unlawful purpose in an unpublished opinion. Generally courts are prohibited from citing unpublished opinions, but the determination of the merger issue in this case warrants consideration of our disposition of Jonathan's case for the purpose of consistency. That does not violate either "the letter [or] spirit of R. 1:36-3." Gottlob v. Lopez, 205 N.J. Super. 417, 421 (App. Div. 1985), certif. denied, 104 N.J. 373 (1986). Here consistency is important. Merger has an obvious impact on defendant's sentence, and courts strive to avoid unwarranted disparity in sentencing, especially where co-defendants are involved. State v. Roach, 167 N.J. 565, 567-70 (2001).
Defendant objects to the consecutive sentences he received for murder and possessing a knife for an unlawful purpose; Jonathan raised the same argument on his appeal. We wrote:
[W]e are of the view that the consecutive term imposed on the possession of a knife for an unlawful purpose . . . must be vacated as that offense should merge with the most serious offense charged- murder. In this regard, while the court aptly noted that defendant's purpose in possessing the knife was broader than the murder, it did not find that it was broader than the collective offenses for which it otherwise sentenced him. Nothing in the court's findings indicate that defendant's use of the knife in the hindering apprehension offense was distinct from his use of the knife in desecrating the victim's remains, an offense for which he has already been consecutively sentenced. And although the court did attempt to distinguish the stabbing as a violent act separate from the murder, it remains that the stabbing caused the murder. Absent any broader purpose for the knife than its use in the commission of these collective crimes, we find that merger of the possessory weapon (knife) offense is appropriate. State v. Diaz, 144 N.J. 628, 639-41 (1996). [Zarate, supra, slip op. at 42-43.]
In this case, the judge made the same findings with respect to these crimes. Thus, merger is appropriate for the same reasons.
That said, we turn to consider defendant's arguments on the excessiveness of his sentence. We focus on his life sentence for murder, which is the maximum sentence.
Defendant was eighteen when sentenced, but he had not yet reached his fifteenth birthday when he committed the crimes. In contrast, defendant's brother Jonathan was eighteen when he committed these crimes, and, as noted above, a jury also found him guilty of second-degree use of a juvenile to commit a crime, N.J.S.A. 2C:24--9a. He also received a life sentence for murder.
At sentencing, defendant spoke about his relationship with his brother, the four-year difference in their ages, the caretaker role his brother had played when their father was working and his admiration for his brother. In addition, there was testimony indicating that defendant participated in the homicidal acts due to his brother's daring and taunting. Defense counsel also presented argument urging the judge to consider this mitigating factor. While the judge noted defendant's educational progress and his well-organized allocution, the judge did not comment on his relationship with his brother or Jonathan's conviction for using a juvenile to commit a crime.
There was clear support in the record for this mitigating factor, and for that reason a remand is appropriate. State v. Dalziel, 182 N.J. 494, 505 (2005). A judge is not required to "explicitly reject each and every mitigating factor argued by a defendant"; the judge does enough if he provides "reasons for imposing [the] sentence that reveal [his] consideration of all applicable mitigating factors in reaching [his] sentencing decision." State v. Bieniek, 200 N.J. 601, 609 (2010). Other than the judge's stated intention to focus on the crime more than the offender, there is nothing in his oral or written statement of reasons indicating that he considered the offender- based mitigating factor that the Legislature identified in N.J.S.A. 2C:44-1b(13) or its relevance to the propriety of defendant receiving the maximum sentence, as his older brother did. Accordingly, we remand for the judge to address mitigating factor thirteen. Our focus on the murder sentence should not be understood to limit the judge from considering this mitigating factor with respect to any other sentence imposed.
Because the judge generally adhered to the statutory provisions and decisional law governing the exercise of sentencing discretion, Bienick, supra, 200 N.J. at 607-08, defendant's remaining arguments have no merit and do not warrant discussion in this opinion. R. 2:11-3(e)(2).
Defendant's convictions are affirmed; the matter is remanded for merger and resentencing in conformity with this opinion.