January 23, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS SARZOZA-GUZMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Criminal Division, Union County, Indictment No. 09-06-0521.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2013 -
Before Judges Sapp-Peterson, Nugent and Haas.
Tried before a jury on a five-count indictment, defendant was convicted of second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1b(1) (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count two); and fourth-degree obstructing the administration of law or other governmental function, N.J.S.A. 2C:29-1 (count four). The trial judge dismissed count five, third-degree resisting arrest, N.J.S.A. 2C:29-2a on defendant's motion. The jury found defendant not guilty of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three).
The judge sentenced defendant to eight years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on count one; fifteen months in prison on count two; and eighteen months in prison on count four. The sentences were to run concurrent with each other. Defendant was also assessed appropriate fines and penalties.
On appeal, defendant has raised the following contentions:
THE JURY INSTRUCTIONS AND VERDICT SHEET WERE SO DEFICIENT AS TO COMPEL REVERSAL OF THE CONVICTIONS FOR UNLAWFUL POSSESSION OF A WEAPON AND OBSTRUCTION OF THE ADMINISTRATION OF LAW OR OTHER GOVERNMENTAL FUNCTION, AS DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
A. The Verdict Sheet and the Re-Charge on Unlawful Possession of a Weapon Failed to Adequately Remind the Jury that Intoxication Applied as a Defense to this Offense.
B. The Verdict Sheet and Charge on Obstruction of the Administration of Law or Other Governmental Function
Prevented the Jury From Properly Considering the Elements of the Offense or the Intoxication Defense, Depriving Defendant of Due Process and A Fair Trial. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
1. Two Theories of Guilt of Obstruction Were Insufficient Under the Statute.
2. If It Were Appropriate to Present These Theories of Guilt to the Jury, The Charge Was So Defective as to Impede Deliberations.
3. On The State's Theory That A Single Shove Of A Single Police Officer Was Sufficient For A Finding Of Obstruction, Errors In The Recharge And Verdict Sheet Were So Defective As To Impede Deliberations.
PROSECUTORIAL MISCONDUCT COMPELS REVERSAL OF THE CONVICTIONS, AS DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED. U.S. Const. Amend. XIV and N.J. Const. Art. 1 Pars. 1, 9, 10.
A. Comments During Trial.
B. Comments at Sentencing.
THE SENTENCES IMPOSED WERE EXCESSIVE.
A. Aggravating Factors.
1) Gravity and seriousness of harm.
2) Risk of re-offense.
B. Mitigating Factors.
1) Prior criminal history
After reviewing the record in light of the contentions advanced on appeal, we affirm.
On February 14, 2009, Fabian Lozada held a birthday party at his home in Plainfield for his six-year old daughter. The party started at 3:00 p.m. for children and it continued throughout the night and following morning for adults. Between 9:30 and 10:00 p.m., Rosario Chase, who was Lozada's mother-inlaw, saw defendant standing outside the house smoking with another man. Chase testified that defendant had not been invited to the party, but she told him he "could come inside, but, please, behave yourself and be good[.]"
Around 1:00 a.m., Chase put her grandchildren to bed. Lozada and his wife Grace retired around 2:00 a.m. Chase then locked the access door to the bedroom area. After putting "a gentleman" named Manuel Correra in charge of the party, Chase left to drive some of the guests home. After she returned, she stayed until 4:00 a.m. when she went home to North Plainfield. Sometime thereafter, however, Chase came back to make sure the basement heater had been turned off.
After turning off the heater, Chase went upstairs and saw defendant standing by her granddaughter's bed with a knife in his hand. Chase ran downstairs, shouting for help. Lozada awoke and went to his daughter's room, where he found defendant. Lozada told defendant to leave. As defendant headed toward the exit, he threatened Lozada with the knife, holding it to Lozada's abdominal area and pointing it at his neck and heart. Defendant told Lozada that if he moved, defendant would stab him. Lozada asked defendant to "[p]lease leave. Please get away from here. I don't want to have any problems."
At this time, Angel Flores, the upstairs neighbor came out of the bathroom and Lozada tried to signal to him to call the police. Defendant said he was going to kill Lozada and, as Lozada raised his right arm, defendant slashed him several times. Lozada did not immediately realize how badly he had been injured. Lozada and defendant began pushing and shoving and defendant then ran out of the house. Lozada tried to pursue him, but he was not able to see well. Chase saw defendant running onto Seventh Street, and observed him putting the knife inside his pant leg by his left ankle.
Between 6:00 a.m. and 7:00 a.m., Lillian Williams was driving her car on Seventh Street. She saw Lozada bleeding profusely from his face trying to flag her down. She stopped at a red light and began to get her cell phone out, when defendant tried to open her car door. Williams ran the light, stopped in the next block, and called 911.
After the police arrived, they took Williams with them to look for the injured man, but they were unable to find Lozada. Williams, however, was able to point out defendant as the man who had attempted to get into her car. Defendant had several small cuts on his face and the police believed he may have also been the victim of an assault. Because the police could not communicate with defendant in Spanish, they took him to the station where they could have a Spanish-speaking officer talk to him.
By this time, Lozada had returned to his house and asked his wife to call the police. After they arrived, he was transported to the hospital by ambulance. The retina surgeon, Dr. Howard Fine, determined that Lozada's eye had been ruptured and there were orbital fractures around the eye. Dr. Fine testified that Lozada's "eyeball was deflated like a raisin, and there was brown tissue on the outside of the eye" that had come from inside the eye. Despite a four-hour operation, and referral to a corneal specialist, Lozada now only has "light perception" in the eye, meaning he can only tell if lights are on or off.
At the police station, defendant was being interviewed when Chase arrived to give a statement. When defendant saw her, he became irate and started screaming at Chase. An officer attempted to take defendant into another room, but he tried to push away and other officers intervened. Defendant continued to shove at them and he swung his fist at an officer before he was handcuffed.
The police found a steak knife on the front lawn of a house on Seventh Street. The knife tested positive for human blood. Although more than one individual's DNA was found on the knife, the State's expert, Monica Ghannam, testified that she "could not exclude [Lozada] to the mixture obtained on the steak knife."
Defendant testified he had consumed eighteen to twenty-four bottles of beer and a great deal of tequila between his arrival at the party at around 9:30 p.m. and 5:00 a.m. the next morning. He stated he left the party at 4:00 a.m. to go home, where he continued drinking with his cousins. Defendant then returned to Lozada's home and drank three more beers and tequila with a tenant who lived in the attic of the house.
Around 5:30 a.m., defendant testified he went downstairs to use the bathroom, but he did not know which door to use. He claimed that he began knocking on, and opening, doors until he found Lozada. Lozada then drank tequila with defendant in the hallway. After that, all defendant remembered was being "outside in the street . . . asking for help" because Lozada had hit him on the side of the head. He also remembered "[b]eing at the police station."
Defendant first argues that the trial judge failed to adequately remind the jurors, when he reinstructed them on the elements of unlawful possession of a weapon, that the defense of intoxication applied. It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State
v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Ibid. The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008).
Defendant raised no objection to any of the judge's instructions at trial. We review arguments raised for the first time on appeal under a "plain error standard." Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result." R. 2:10-2; See also State v. Macon, 57 N.J. 325, 337 (1971). Having applied these standards to the judge's charge in this case, we perceive no error warranting a reversal.
Defendant concedes the judge "adequately instructed the jury as to the elements of unlawful possession of a weapon and intoxication" during his main charge to the jury. After deliberations began, the jury sent the judge a note asking "[d]oes purposely or knowing, come into play?" with regard to this charge. The judge reviewed the jury's question with counsel and proposed that the jury be instructed on all three elements of the offense of unlawful possession of a weapon. Defense counsel and the prosecutor agreed to this charge and no request was made that the judge again instruct the jury concerning intoxication.
We perceive no plain error in the judge's instructions on this point. He reviewed his proposed response with counsel, and hearing no objection, he answered the jury's specific question. Absent a further question from the jury on intoxication, there was no need for the judge to provide any supplemental instructions on that issue.
Defendant also argues the verdict sheet failed to remind the jury that the intoxication defense could be applied to the unlawful possession of a weapon charge. The verdict sheet had the abbreviation "INTOX" for the questions concerning the aggravated assault, serious bodily injury charge and for the lesser included offenses relevant to that charge. However, this abbreviation was not included for the weapons offenses.
This, however, was not plain error. It appears the judge included the "INTOX" abbreviation in the verdict sheet for the assault charges only because there were some lesser included offenses, such as aggravated assault by recklessly causing bodily injury with a deadly weapon, to which the intoxication defense would not apply. Thus, the abbreviation was properly used for the assault charges.
There was, however, no need to include the "INTOX" abbreviation reminder for the other offenses. The judge carefully instructed the jury that the intoxication offense applied to the unlawful possession of a weapon charge and, reviewed in context, we cannot conclude the omission of the abbreviation in the verdict sheet had the potential to confuse the jury on this charge. The judge also instructed the jury that "[t]he verdict sheet does not take the place" of his verbal instructions. Moreover, defendant raised no objection to the verdict sheet at trial.
Defendant next argues the judge should have granted his motion for a judgment of acquittal on the obstruction charge. He asserts the State failed to present sufficient facts to support this charge and, therefore, it should not have been submitted to the jury. We disagree.
In ruling upon a motion for a judgment of acquittal at the close of the State's case, the test to be applied is whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged. [State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]
We have stated that "'the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).
Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004). "We give no consideration to evidence or inferences from defendant's case." Ibid. (citing Reyes, supra, 50 N.J. at 459).
Under N.J.S.A. 2C:29-1a, a person commits the offense of obstruction if he or she purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence or physical interference or obstacle, or by means of any independently unlawful act.
The evidence here was more than sufficient to enable a jury to properly find defendant guilty of obstruction.
In denying defendant's motion for acquittal, the trial judge pointed to Chase's testimony that she observed defendant place the knife in his ankle area as he ran away. The police later found the knife on a lawn which, as the judge found, indicated that defendant "tried to get rid of the knife so it was not found." By doing so, defendant "place[d] an obstacle to prevent a public servant from performing an official function." The judge also noted there was evidence that defendant attempted to flee the scene by getting into Williams' car and that, by shoving and throwing a punch at the police officers at the station, defendant "interfere[d] with their attempt to further the investigation."
The judge also found there was sufficient evidence in the record to enable a jury to conclude defendant knew an investigation would ensue from the stabbing. He further found a jury could infer that defendant got rid of the knife, attempted to flee, and engaged in the altercation at the station with the purpose of obstructing the police in their investigation. These findings are fully supported by the record and we perceive no basis to disturb them.
Defendant next argues the judge's instructions on the obstruction charge were faulty. We disagree. By agreement of counsel at the charge conference, the judge stated he would use the Model Jury Charge for "Obstructing Administration of Law or Other Governmental Function" (2000), with minor revisions designed to mold the charge to the facts of the case and the allegations of the parties. The judge then charged the jury accordingly. We detect no error, much less plain error, in the instructions provided to the jury on the obstruction charge.
During deliberations, the jury asked for a definition of the word "force" as used in the obstruction charge. The model charge did not define this term. Both attorneys agreed the judge should use Black's Law Dictionary and Webster's Dictionary to define this word and the judge instructed the jury accordingly. Defendant now argues the judge erred by doing so.
We reject this contention. "For the purpose of instructing and guiding juries, courts regularly explain and define statutory language consistent with legislative intent." State v. Alexander, 136 N.J. 563, 571 (1994). This is what occurred here. Contrary to defendant's contention, the dictionary definitions, to which he did not object at trial, were clear and appropriate.
Defendant next argues the prosecutor made improper remarks during her closing arguments and at sentencing. Again, we disagree.
Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Considerable leeway is afforded to prosecutors in presenting their arguments at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Accordingly, the prosecutor's statements to the jury must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). When, as here, defendant fails to object to the prosecutor's comments at trial, the allegedly "improper remarks will not be deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999).
No misconduct occurred in this case. Defendant first contends that, in her summation, the prosecutor improperly implied he had the burden of proving he was too intoxicated to have formed the intent necessary to commit the offenses. We disagree.
In his closing, defense counsel had stated:
Eighteen bottles of beer, tequila, three more beers in 30 minutes, three more beers back at Rafael's. Twenty-four beers and some tequila with no food in your stomach. [Defendant] is not guilty of this because he couldn't form the intent needed, and that is why. Twenty-four beers and tequila and no food.
In response, the prosecutor argued, "[Defendant] comes here before you and he says, essentially, 'I was, too, drunk. I don't remember anything. You should just find me not guilty. I can't be held accountable for my actions.'" She also argued,
Sure, he was drinking, but not to the level of intoxication under the law. And Sergeant Passarelli told you if that was how the defendant had appeared he has to take him to the hospital. That is what they have to do at that point. It's not the condition that he was in, ladies and gentlemen. You could - - he could sit here and say he doesn't remember all he wants. The evidence in this case shows this man is not intoxicated to the point that it rises to the level of an affirmative defense for him in this case.
These comments did not shift the burden to defendant to prove intoxication. Rather, they were a direct response to defendant's argument that he was intoxicated. The judge also clearly instructed the jury that the State, not defendant, had the burden of proving "beyond a reasonable doubt that [defendant's] intoxication did not render [him] incapable of acting purposely or knowingly."
Defendant next argues the prosecutor acted improperly when she told the jury she had conducted legal research on intoxication and had made some notes, which she used during her summation. She also told the jury she had made notes as defendant testified and wanted to discuss them with the jury. There was nothing improper about these remarks. Contrary to defendant's argument, the prosecutor was not "personally vouching" for a witness or referring to matters outside the record. An attorney is permitted to make legal and factual arguments to the jury and to refer to her notes as she presents her arguments. The judge instructed the jury that its collective recollection of the facts controlled and that the jury was bound by his instructions as to the law. We therefore reject defendant's argument.
We also reject defendant's argument that the prosecutor incorrectly shifted the burden of proof to him when she pointed out that there was no testimony that defendant, who claimed he had consumed up to twenty-four beers and copious amounts of tequila, ever slurred his words, stumbled, or vomited as a result of his alleged actions. These were plainly comments upon the evidence in the record and were a fair response to defendant's contention that he was intoxicated.
Defendant also argues that, at sentencing, the prosecutor improperly asked the judge to "disregard the jury's ambiguous verdict and make new findings that there was no intoxication." This argument lacks merit. The prosecutor did nothing more than respond to defendant's argument that he was entitled to consideration of a number of mitigating factors because he was too intoxicated to have been able to contemplate the results of his conduct. In that context, the remarks were clearly proper. State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). Moreover, the remarks were made to the judge at sentencing, not to the jury and, as discussed below, the judge appropriately considered all of the statutory factors in determining defendant's sentence. State v. Sullivan, 24 N.J. 18, 36 (1957).
Finally, defendant argues the facts do not warrant aggravating factors two (gravity and seriousness of harm), N.J.S.A. 2C:44-1a(2); three (risk that defendant will commit another offense), N.J.S.A. 2C:44-1a(3); and nine (need for deterrence), N.J.S.A. 2C:44-1a(9). He also urges that the court should have given more weight to mitigating factor seven (lack of a criminal record), N.J.S.A. 2C:44-1(b)(7), and should have found mitigating factor four (there were substantial grounds tending to excuse or justify defendant's conduct), N.J.S.A. 2C:44-1(b)(4), based on his claim that he was intoxicated at the time of the offenses.
In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984). We are satisfied the judge made findings of fact regarding aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess the sentence.
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