On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-08-1998.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 15, 2012
Before Judges Axelrad, Sapp-Peterson and Haas.
Defendant Jose Aleman appeals from his murder conviction for fatally shooting Pong Yu and injuring Carlos Smith. He challenges, as plain error, the verdict sheet and jury instructions, the admission of character evidence and lack of a limiting instruction, and the admission of testimony at a bifurcated trial regarding the nature of his prior conviction. We affirm.
As a result of a shooting occurring in Atlantic City on April 24, 2008, defendant was charged by an Atlantic County Grand Jury in a five-count indictment, No. 08-08-1998B, with first-degree murder of Yu by purposely or knowingly causing his death or inflicting serious bodily injury resulting in death, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree unlawful possession of a .38 caliber handgun with a purpose to use it unlawfully, N.J.S.A. 2C:39-4a (count two); second-degree unlawful possession of a .38 caliber handgun without a permit to carry as provided by N.J.S.A. 2C:58-4, N.J.S.A. 2C:39-5b (count three); fourth-degree recklessly causing bodily injury to Smith with a deadly weapon, N.J.S.A. 2C:12-1b(3) (count four); and second-degree possession of a .38 caliber handgun by a person previously convicted of possession with intent to distribute CDS, N.J.S.A. 2C:39-7 (count five).
Following a five-day trial, defendant was convicted by a jury on September 8, 2010 of counts one through four. A bifurcated jury trial was then conducted on count five, after which defendant was convicted of that count. Defendant filed a motion for a new trial, which was denied. Judge James Isman sentenced defendant on October 29, 2010 to an aggregate custodial term of fifty and one-half years with thirty-nine years parole ineligibility, and imposed mandatory fees, fines, and penalties. This appeal ensued.
At trial, the State presented the testimony of Smith, several law enforcement officers and expert witnesses,*fn1 and several bystanders who witnessed or heard the shooting. The State also presented a surveillance videotape of the parking lot that depicted the murder in its entirety and an audio/video recording of defendant's confession. The defense presented the testimony of his landlord; a close friend, Santos Torres; and defendant testified on his own behalf.
Defendant admitted on the stand that he fatally shot Yu twice, once in the abdomen and once in the head. In a recorded interview conducted by Investigator Cintron that was played for the jury, which was repeated by defendant at trial, defendant stated he shot Yu because the victim would not repay him $13,000, comprised of a $10,000 loan defendant made to him in 2006 and $3000 from work defendant did for Yu. His defense was that he acted in the heat of passion and was provoked because Yu withheld defendant's money and would not return his calls when he desperately needed money for cancer treatment, and this made the crime passion/provocation manslaughter rather than first-degree murder.
Defendant testified he was walking towards his house on South Tennessee Avenue in Atlantic City when he saw Yu drive his truck and park it in a lot nearby. Defendant walked over to his house and retrieved a gun he had recently purchased, loaded it with six bullets, and put it in his backpack. Defendant returned to the parking lot where Smith and Yu were standing. About five minutes had passed from when defendant first observed Yu's vehicle until the time he returned to the parking lot.
Defendant hid for about eight minutes, waiting for a woman with whom Yu was speaking to leave. He then walked up to Yu, had a short conversation with him, and with a "calm" demeanor, pulled out the revolver, pointed it at Yu, and shot him in the abdomen. The bullet entered on the right side of his torso and exited through his right flank. Yu fell to the ground.
Defendant then walked over to Yu, pointed the gun at his head, and fired two more shots. One bullet struck Yu at the right rear of his skull, entered downward and traveled through his brain before coming to rest in his skull. Dr. Parks testified that this shot was fatal. Another bullet was lodged in the asphalt next to Yu's head. Defendant placed the gun on a gas meter and asked witnesses to call the police.
Smith testified that he was with Yu when Yu was shot, and one of the bullets grazed his right arm and then struck his car. He had a scar on his arm as a result. He discovered the bullet that struck his car later that day.
In addition to the audio/video recording of the interview, Captain Fair and Detective Jasiecki testified to defendant's calm, cool demeanor, both at the scene of the crime and the interview later that day. The surveillance video of the shooting was shown to the jury.
On appeal, defendant argues:
BOTH THE VERDICT SHEET AND SOME OF THE JURY INSTRUCTIONS FAIL TO PROPERLY ASSIGN THE
BURDEN OF DISPROVING PASSION/PROVOCATION TO THE STATE (NOT RAISED BELOW).
THE STATE'S ATTEMPT, THROUGH CROSS-EXAMINATION, TO PAINT A PICTURE OF DEFENDANT AS AN ANGRY MAN UNFIT TO OWN OR POSSESS A GUN, WAS: (1) AN IMPROPER USE OF CHARACTER EVIDENCE TO PROVE SPECIFIC CONDUCT IN VIOLATION OF N.J.R.E. 404(A); (2) AN ATTEMPT TO BESMIRCH DEFENDANT'S CHARACTER IN VIOLATION OF THAT RULE AND N.J.R.E. 404(B); AND (3) WHOLLY IMPROPER WITHOUT A LIMITING INSTRUCTION TO RESTRICT THE JURY'S USE OF THAT EVIDENCE (NOT RAISED BELOW).
ONCE DEFENSE COUNSEL AGREED THAT SHE WAS STIPULATING THE FACT THAT DEFENDANT HAD A PRIOR CONVICTION THAT SATISFIED THE STATUTE WHICH PROSCRIBES PREVIOUSLY CONVICTED PERSONS FROM POSSESSING WEAPONS, THE JURY SHOULD NOT HAVE BEEN TOLD THE NATURE OF THE DEFENDANT'S PRIOR CONVICTION (NOT RAISED BELOW).
Based on our review of the record and applicable law, we are not persuaded by any of these arguments and ...