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State v. Terrero

Superior Court of New Jersey, Appellate Division

June 4, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
GERMANIA TERRERO, a/k/a XIOMARA, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 16, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-07-01251.

Frank J. Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pugliese, of counsel and on the brief).

Michelle E. Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Ms. Ditzhazy, on the brief).

Before Judges Fisher and Leone.

PER CURIAM.

Defendant Germania Terrero appeals her judgment of conviction for numerous offenses. She concedes that the evidence was sufficient to show that she conspired with her lover Kristian Molina to rob and burglarize the restaurant owned by her employer and boyfriend Aracelio Lopez, whom Molina stabbed during the crime. She contends, however, that the evidence was insufficient to show that she knew or had reasonable ground to know that Molina and co-conspirator Robert Santana would be armed or that Molina intended to cause serious bodily injury that resulted in Lopez's death. We reject her contention. We also reject her claims of plain error in the jury instructions and the prosecutor's summation.

I.

"[G]iving the State the benefit of all its favorable testimony, " State v. Reyes, 50 N.J. 454, 459 (1967), the trial evidence introduced by the State showed as follows. In approximately 1999, Lopez hired defendant as a waitress at El Balcon, a restaurant and bar that he owned in West New York. After a year or so, defendant, who was in her mid-thirties, and Lopez, who was over sixty, began an amorous relationship. Defendant and her two daughters moved into Lopez's apartment. Because that violated the building's occupancy rules, Lopez rented another apartment in the building for defendant's daughters, while defendant lived with Lopez.

Little by little, Lopez gave defendant more control over the restaurant. By the time of his death, she was manager of the upper floor, ran the restaurant in his absence, and was regarded as the boss by some employees. Four of defendant's relatives got jobs in the restaurant, including her oldest daughter. In January 2006, Lopez revised his will to provide in the event of his death that defendant would operate the restaurant with his friend Alejandro Ortiz, and that defendant would share in the profits and the proceeds of any sale of the restaurant. It is undisputed that defendant knew of this "New Jersey" will, which her sister witnessed and which Lopez kept in the apartment he shared with defendant.

By October 2007, however, defendant had met Molina, with whom she was soon sexually active. Lopez suspected she was having an affair. In November, defendant and Lopez had a domestic dispute when he questioned her whereabouts. By December, she moved into her daughters' apartment.[1]

Also in October 2007, Molina met Santana. Molina told Santana that he was in an amorous relationship with a lady who had a restaurant. Molina took Santana to the restaurant and pointed out defendant. Around Christmas 2007, Molina asked Santana if he would be interested in robbery or stealing. Santana initially declined.

By New Year's Eve, defendant and Molina were frequently together, defendant often stayed at Molina's apartment, and Molina came to the restaurant when Lopez was absent. Molina told Santana that Lopez was accusing defendant of cheating on him, and threatening her that there would be problems if she was with another man. Molina said that defendant felt attacked and that Lopez was not leaving her alone. Molina was upset.

Around January 2008, while Lopez was on vacation, defendant, claiming that she had lost her keys to Lopez's apartment, obtained new sets of keys from the building manager. Defendant then gave Molina the key to Lopez's apartment. On February 15, 2008, Lopez discovered that his apartment had been burglarized. His gold rings and gold necklace were torn from a pillow where he kept his jewelry, but the burglar had not touched defendant's jewelry, the television, or the stereo. Molina told Santana that he had taken the jewelry from the apartment using the key he had gotten from defendant.

In January or February 2008, Molina tried to solicit other men to send Lopez "to the hospital" for disrespecting defendant. Molina said that Lopez was hitting defendant and sent her to the hospital. Molina was very angry when he talked about Lopez and defendant together. Molina took the men past the restaurant and Lopez's apartment. Molina told one man he wanted to rob the restaurant and beat up Lopez, and that the man could reach Molina at either his or defendant's phone number. Molina was unable to get either man to do the job.

On March 1, 2008, Molina again approached Santana, saying that they were going to rob the restaurant. Molina said that defendant would leave the door unlocked or open, and that "everything was going to be planned out." Defendant called Santana several times to talk to Molina. Molina assured Santana that "everything would be easy and that . . . we wouldn't spend too much time there because everything was planned." Santana responded that he would join in the robbery if "we don't have to hurt anybody."

Molina told Santana that defendant was going to make sure no one was in the restaurant besides her and Lopez. Normally, Lopez, defendant, her daughter, and the other employees left together at 2:00 a.m., with Lopez and defendant giving the cook a ride home. On March 3, 2008, however, "it wasn't the same routine": defendant's daughter left just after midnight; the restaurant closed earlier, the employees leaving around 1:50 a.m.; and defendant told the cook to go home without offering her a ride. Defendant was unusually quiet.

On March 3rd at 1:42 a.m., defendant called Santana trying to reach Molina. Santana told her to call Molina at his apartment. Molina soon summoned Santana to his apartment. When Santana arrived, Molina told him that he had spoken to defendant, and Molina related the plan for robbing the restaurant. Molina said defendant would leave the door open and would send Lopez into the kitchen for something so Molina and Santana would have a chance to enter. Molina instructed that he and Santana were to speak English so Lopez would not recognize their voices and ethnic background. They were not disguising their voice for defendant "because she was the one who planned it and she knew we were heading over there."

After Santana arrived at Molina's apartment, Molina gave him a small machete, telling him to take it because "you don't know what kind of surprise the person who you're going to perform the robbery against could give you." Molina took Santana's cellphone because defendant was going to call on that phone, allegedly because the battery of Molina's phone was dead.

Molina and Santana drove to the restaurant, and waited out front for defendant to call with the signal. Molina had the phone by his ear a number of times, with calls from defendant at 2:18, 2:19, 2:20, and 2:21 a.m. In the last call, defendant gave Molina the signal, and Molina told Santana they were to enter. Meanwhile, Lopez had gone into the kitchen to warm up some soup.

Molina and Santana entered through the open front door. Defendant was by the bar, and Lopez was coming out of the kitchen. Molina grabbed the surprised Lopez, pulled him to the floor, and began attacking him and kicking him in the face.

Santana, scared, pushed Molina and asked why he was doing this. Molina replied, "shut up, n*gger." Defendant also pushed Molina, and in Spanish asked what he was doing, said "not like this" and screamed "no." Santana noticed, however, that she was not crying, and her tearless screams and protests seemed "fake" and "not for real." Molina said "shut the f*ck up, b*tch" in English, even though Molina knew that defendant speaks Spanish. Defendant then stepped back and let the assault proceed.

Seeing the anger in Molina's face, Santana left the restaurant two minutes after entering. Molina exited the restaurant thirty seconds later. They argued as they walked to the car. Neither man took any money from the restaurant; Molina took only Lopez's Rolex watch and jewelry. Santana saw a knife in Molina's hands. Molina said that Lopez did not stay still, so Molina had to stab him.

In fact, Molina had given Lopez a stab wound that was twelve-to-fifteen-inches deep and exposed his intestines. Lopez's face was bleeding and his face, ears, and eye were bruised. Defendant, however, waited fifteen to twenty minutes to call 9-1-1. Even then, she just said "El Balcon, emergencia, " and hung up without requesting an ambulance.

Just before 2:48 a.m., an employee, Deocelius Negron, returned to leave his car in the restaurant parking lot. Through the restaurant window, he saw defendant gesture to attract his attention. When he entered, defendant was screaming that they had been robbed, but Negron thought she "was acting like she was crying and screaming but she was not crying, there were no tears."

When the police arrived, they saw the restaurant had security cameras, and asked defendant if the cameras were recording. Officer John Alvarez observed that defendant, who had been very calm, became nervous. When it was determined that the cameras were not recording, the officer noted that she gave a sigh of relief.

On the scene and thereafter, defendant repeatedly gave the police false information. She did not reveal that she knew the robbers were Molina and Santana. Instead, she told the police that the robbers were "morenos" (non-Latino black males) speaking perfect English with no accent. She said they were over six feet tall, but Santana was 5'6" tall and Molina was 5'8" tall. She said they were wearing green and gray and that one had facial acne, when both were wearing black with bandanas covering their faces. She said that she had locked the front door and that the robbers had come from upstairs, but the employees testified that no one remained upstairs when the restaurant closed. She said a customer probably did it.

With the police chasing defendant's false leads, Molina and Santana escaped. The next day, Molina met with Santana and gave him $3, 000 in cash, saying that defendant gave him that money. They fled to Florida. From Florida, Molina fled to the Dominican Republic, and then to Venezuela.

Meanwhile, Lopez was taken to the hospital. He had significant internal bleeding, suffered complications from his stab wound and resulting surgery, and went into a coma. He was eventually taken off the ventilator and died.

II.

A grand jury indicted defendant, Molina, and Santana. Molina remained a fugitive, and Santana pleaded guilty to armed robbery and testified as a prosecution witness at trial. After a lengthy trial in March and April 2011, the jury acquitted defendant of first-degree murder and conspiracy to commit murder, N.J.S.A. 2C:11-3a(1)-(2) and N.J.S.A. 2C:5-2. The jury convicted her on the remaining charges arising out of the March 3, 2008 robbery, namely first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1); two counts of first-degree felony murder, in the course of a robbery and in the course of a burglary, N.J.S.A. 2C:11-3a(3); first-degree robbery and conspiracy to commit first-degree robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2; second-degree burglary and conspiracy to commit second-degree burglary, N.J.S.A. 2C:18-2 and N.J.S.A. 2C:5-2; third-degree theft and conspiracy to commit theft, N.J.S.A. 2C:20-3 and N.J.S.A. 2C:5-2; and two counts of third-degree possession of a weapon for an unlawful purpose, namely the knife and the machete, N.J.S.A. 2C:39-4d. With regard to the February 15, 2008 burglary of Lopez's apartment, the jury acquitted her of all the charges, namely burglary, theft, and conspiracy to commit burglary and theft.

At sentencing on June 28, 2011, the trial judge merged all the other convictions with one of the felony murder counts.[2] On that count, he sentenced defendant to thirty years in prison.

Defendant appeals, raising the following points:

POINT I
ALTHOUGH THE EVIDENCE ESTABLISHED THAT TERRERO KNOWINGLY PARTICIPATED IN THE BURGLARY AND ROBBERY OF THE RESTAURANT, INCLUDING A CONSPIRACY TO COMMIT EACH, THE STATE PRESENTED NO EVIDENCE THAT SHE HAD REASONABLE GROUND TO BELIEVE THAT HER CO-CONSPIRATORS, MOLINA AND SANTANA, WOULD BE ARMED OR THAT MOLINA INTENDED TO CAUSE LOPEZ TO SUFFER SERIOUS BODILY INJURY. THEREFORE, AT THE CLOSE OF THE STATE'S CASE, THE COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION TO DISMISS THE COUNTS CHARGING CONSPIRACY TO COMMIT MURDER AND MURDER. THE COURT SHOULD ALSO HAVE GRANTED DEFENDANT'S MOTION MADE AFTER THE DEFENSE RESTED TO DISMISS THE COUNTS CHARGING FELONY MURDER, ARMED ROBBERY, ARMED BURGLARY, CONSPIRACY TO COMMIT ARMED ROBBERY, CONSPIRACY TO COMMIT ARMED BURGLARY AND THE WEAPONS RELATED OFFENSES. ALTERNATIVELY, THE COURT SHOULD HAVE SUA SPONTE ENTERED JUDGMENTS OF ACQUITTAL ON ALL COUNTS EXCEPT THIRD-DEGREE BURGLARY, SECOND-DEGREE ROBBERY AND CONSPIRACY TO COMMIT EACH, NOTWITHSTANDING THE JURY'S VERDICT.
A. The Counts Charging Conspiracy to Commit Murder, Murder, Including the Lesser Offenses of Aggravated Manslaughter and Reckless Manslaughter, Felony Murder, Conspiracy to Commit Armed Robbery and Armed Burglary, Armed Robbery, Armed Burglary, and Possession of a Weapon for an Unlawful Purpose Should All Have Been Dismissed.
B. The Court Should Have Granted Defendant's Motion to Dismiss The Felony Murder Counts at the Close of the Evidentiary Phase of the Trial. In the Alternative, The Court Should Have Entered Judgments of Acquittal On Both Felony Murder Charges Notwithstanding the Jury's Verdict.
POINT II
THE COURT'S FAILURE TO PROVIDE THE JURY WITH A CHARGE EXPLAINING HOW TO APPLY THE FELONY-MURDER AFFIRMATIVE DEFENSE TO THE CIRCUMSTANCES OF THIS CASE AND ITS FAILURE TO DELIVER SAID CHARGE ACCURATELY DEPRIVED TERRERO OF DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
POINT III
THE PROSECUTOR'S SUMMATION WAS REPLETE WITH IMPROPER COMMENTS AND SO FAR EXCEEDED THE BOUNDS OF PROPRIETY THAT THE DEFENDANT WAS DENIED A FAIR TRIAL. (Not Raised Below).

III.

At the close of the State's case, defendant moved for a judgment of acquittal on the charges of murder and conspiracy to murder. The trial judge denied the motion because the evidence was sufficient to support an inference that Molina purposely and knowingly stabbed Lopez, and because defendant acted as his accomplice by leaving the door unlocked and telephoning that the coast was clear to enter.

The jury ultimately acquitted defendant of murder and conspiracy to murder. Acquittal normally moots a challenge to the earlier denial of a motion for judgment of acquittal. State v. Pickett, 241 N.J.Super. 259, 265 (App. Div. 1990).

Defendant nonetheless argues that the murder and conspiracy to murder charges constituted overcharging that led to a compromise verdict. That theory was accepted in State v. Christener, 71 N.J. 55, 69-70 (1976), which required reversal if "there was a real possibility that the jury could have found the defendant not guilty." In State v. Wilder, 193 N.J. 398 (2008), however, the Supreme Court overruled Christener. See State v. Kornberger, 419 N.J.Super. 295, 304 (App. Div.), certif. denied, 208 N.J. 368 (2011). The Court "reject[ed] further use of Christener in connection with claims of jury overcharge, " because "the Christener standard is inconsistent with Rule 2:10-2 and our harmless error jurisprudence, irreconcilable with the respect that we accord to a jury's verdict that is based on sufficient evidence, and unreliable in application." Wilder, supra, 193 N.J. at 403. The Court held that "overcharging errors, like other non-constitutional trial court errors such as defects in charging and the like, should be subjected on appeal to the same 'unjust result' standard established in Rule 2:10-2." Id . at 418.

Defendant claims that the jurors' attention was misdirected, citing their questions: "Is aggravated manslaughter second or third degree murder, is reckless manslaughter second or third degree murder?"; and "Can you explain in layman's terms instead of reading from the law?" Even if so, the trial judge properly redirected the jurors, telling the jurors that "what degree the manslaughters are is not within the purview of your deliberations, " reminding them that their job was to "decide what the facts are, " and rereading the murder, manslaughter, conspiracy, and accomplice instructions. Defendant's argument is precisely the "guesswork and supposition" condemned in Wilder, is not "evidence of jury compromise, " and does not meet the "unjust result" standard of Rule 2:10-2. Wilder, supra, 193 N.J. at 415.[3]

In any event, there was no overcharging. See id. at 408. Defendant does not dispute that Molina committed murder by "purposely" or "knowingly" causing "serious bodily injury resulting in death." See N.J.S.A. 2C:11-3a(1)-(2); State v. Cruz, 163 N.J. 403, 417-18 (2000). She instead argues that the evidence was insufficient to show that she was a conspirator or accomplice to the murder. We disagree. As the facts above indicate, and as we rule in the next section, there was sufficient evidence to indicate that defendant was Molina's conspirator and accomplice because of her intimate involvement in the planning and execution of the crimes, from which the jury could infer that she knew that Molina was armed and intended to inflict serious bodily injury. That same intimate involvement permitted a reasonable inference that she and Molina were also in agreement that the serious bodily injury should result in death. Her romantic relationship with Molina gave her the same motive as Molina for wanting Lopez out of the way. Her knowledge of Lopez's New Jersey will (she was apparently ignorant of his recent Florida will) gave her financial reasons to want Lopez dead. In addition, her feigned cries, and her delay in calling 9-1-1 after Molina stabbed Lopez, were further evidence that Lopez's death was part of the plan.

IV.

At the close of all the evidence, defense counsel moved for judgment of acquittal on "every count" but only specifically argued that the evidence was insufficient regarding the February 15, 2008 burglary.[4] Defendant on appeal does not dispute that the evidence was sufficient to convict her as an accomplice and conspirator to second-degree robbery, third-degree burglary, and third-degree theft. She contends, however, that the trial judge erred by denying the motion regarding the other crimes of which she was convicted because the evidence did not permit an inference that she knew the robbers would be armed or that Molina planned to inflict serious bodily injury. We find the evidence sufficient.

"Our review of the trial court's denial of the motion for a judgment of acquittal requires utilization of the same standard" used by the trial judge. State v. Jiminez, 257 N.J.Super. 567, 573 (App. Div. 1992). A court may enter a judgment of acquittal "if the evidence is insufficient to warrant a conviction." R. 3:18-1. We must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." Reyes, 50 N.J. at 459. "[A] jury may draw an inference from a fact whenever it is more probable than not that the inference is true; the veracity of each inference need not be established beyond a reasonable doubt in order for the jury to draw the inference." State v. Brown, 80 N.J. 587, 592 (1979).

Here, the evidence was sufficient to support a reasonable inference that defendant knew that the robbers would be armed with a deadly weapon. Defendant and Molina were very close, together often, and telephoning frequently. Molina said that defendant "was the one who planned" the attack on the restaurant where she worked, which was corroborated by the timing of her phone calls to Molina just before he announced the plan on March 1st, and elaborated on the plan on March 3rd. Molina also said that "everything was planned, " down to the language they would speak in the restaurant. That the planning included a deadly weapon was apparent from the meeting in Molina's apartment where, after speaking to defendant, he gave Santana a machete. Furthermore, Molina and defendant thereafter spoke four times before Molina and Santana entered the restaurant armed with the machete and a knife. Indeed, given that the plan was to enter when Lopez was in the restaurant, it was a natural part of the plan for the robbers to be armed, as Molina himself explained.

For the same reasons, the jury could also reasonably infer that defendant knew that Molina intended to purposely inflict serious bodily injury on Lopez. Indeed, the plan seemed designed to bring about a confrontation between the armed robbers and Lopez. Defendant and Molina did not plan a burglary when Lopez was absent, as she allegedly had for the February burglary, [5] even though defendant ran the restaurant when Lopez was away, and Molina had come to the restaurant when Lopez was absent. Instead, defendant and Molina planned the robbery for a night when Lopez would be present but temporarily distracted. Indeed, given that Molina jumped Lopez as soon as they entered, started kicking his face, stabbed him, and then left without taking any money from the restaurant, the jury could reasonably infer that the plan's focus was assault rather than robbery. Finally, both Molina and defendant had a motive to harm Lopez because he was threatening and harassing her and interfering in their relationship. In February, Molina planned to put Lopez in the hospital - a plan Molina was not keeping secret from defendant, as he gave defendant's phone number to his co-conspirator. There is no reason to believe that defendant's involvement was any less in March. Also, defendant's faked protest, as well as her feigned tearless cries thereafter, indicated that the assault was no surprise to her.

Given these reasonable inferences, the evidence was sufficient to support defendant's challenged convictions. The evidence clearly showed felony murder, and defeated her defense to felony murder, because the evidence disproves that she "[h]ad no reasonable ground to believe" that a robber "was armed with [a deadly] weapon, " and "intended to engage in conduct likely to result in death or serious physical injury." See N.J.S.A. 2C:11-3a(3)(c)-(d).[6] Similarly, her knowledge that the robbers were armed with a deadly weapon, and her knowledge that Molina intended to purposely inflict or attempt to inflict serious bodily injury, are each sufficient to support a reasonable inference that she had "the purpose of promoting or facilitating the commission of" first-degree robbery and second-degree burglary, sufficient to support her conviction as an accomplice and as a conspirator for those offenses. See N.J.S.A. 2C:5-2, 2C:2-6c, 2C:15-1, 2C:18-2.[7] The evidence also supported the reasonable inference that she had the purpose to promote or facilitate, and thus was an accomplice to: the robbers' possession of a weapon "with a purpose to use it unlawfully against the person or property of another, " N.J.S.A. 2C:39-4; and aggravated manslaughter, which is committed when the "actor recklessly causes death under circumstances manifesting extreme indifference to human life, " N.J.S.A. 2C:11-4; see State v. Bakka, 176 N.J. 533, 550 (2003).

Defendant points to Santana's testimony that Molina did not tell him that the robbers would be armed until the hour before the robbery, and that Molina assured him that no one would be hurt. The evidence that Molina lied to a very recent and reluctant recruit hardly shows that Molina lied to his lover in their lengthy and eager planning of the crimes. Defendant also argues that she tried to stop Molina "once his real intentions became evident." However, the only witness, Santana, testified that her attempt was "fake" and "not real." Molina's response in English, to his lover with whom he always spoke Spanish, indicated that her protest was part of their plan to deceive Lopez as to the identity of his enemies, including defendant. The jury was not required to be similarly deceived.

V.

Defendant next challenges the trial judge's instruction on the affirmative defense for felony murder under N.J.S.A. 2C:11-3a(3). As she raised no objection in the trial court, she must show plain error. R. 2:10-2; State v. Morton, 155 N.J. 383, 421 (1998). Defendant must show "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Adams, 194 N.J. 186, 207 (2008) (citation omitted). "The charge to the jury must be read as a whole in determining whether there was any error." Ibid. Furthermore, the prejudicial effect of the error "'must be evaluated in light of the totality of the circumstances—including all the instructions to the jury, [and] the arguments of counsel, '" ibid. (citation omitted), and "'the overall strength of the State's case, '" State v. Walker, 203 N.J. 73, 90 (2010) (citation omitted).

The trial judge instructed the jury using the model jury charge for N.J.S.A. 2C:11-3a(3), under which it is an affirmative defense if the defendant "(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof, " "(b) Was not armed with a deadly weapon, " "(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, " and "(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury." N.J.S.A. 2C:11-3a(3). The defense is unavailable if there is no evidence supporting, or if the State disproves beyond a reasonable doubt, any one of the four prerequisites. Walker, supra, 203 N.J. at 84, 90; State v. Smith, 322 N.J.Super. 385, 396 (App. Div.), certif. denied, 162 N.J. 489 (1999).

Here, the trial judge told the jurors "it is an affirmative defense to felony murder if there is proof in the case that defendant Germania Terrero" met those four requirements, but if the State proved that "1) the defendant was engaged in the crime of robbery or burglary as charged in counts six and eight of the indictment; [and] 2) that the death of Aracelio Lopez was caused" during those crimes, then they should convict her if the State disproved the affirmative defense.

Defendant claims that the trial judge erred by not further molding the instruction to the facts. However, that requirement has been imposed where "the statement of relevant law, when divorced from the facts, was potentially confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000). Here, there was nothing confusing or misleading about the application of the affirmative defense to the facts, which "were not so complex or confusing as to require an intricate discussion in the charge, " Morton, supra, 155 N.J. at 422; see State v. Walker, 322 N.J.Super. 535, 548 (App. Div.), certif. denied, 162 N.J. 487 (1999). Even if more "factual context" could have been added, "[i]t is not plain error when jury instructions are not incorrect but merely capable of being improved." State v. Tierney, 356 N.J.Super. 468, 481 (App. Div.), certif. denied, 176 N.J. 72 (2003). "Defendant's failure to submit a request to charge or interpose a timely objection constitutes strong evidence that the error belatedly raised here was actually of no moment." State v. White, 326 N.J.Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).

Defendant also notes that the transcript of the instruction shows a word erroneously inserted into one sentence: "However, it is not necessary that all four requirements be negated since the defense is not available unless the evidence supports all four of the requirements it is sufficient for the State in such a case to present proof beyond a reasonable doubt without negating any one of them." The word "without" is not in the model charge and should not have been included.

However, immediately before the challenged sentence, the trial judge had properly instructed that if "there is evidence in the case supporting all four requirements, " then "it is incumbent upon the State to negate this evidence by proof beyond a reasonable doubt." Shortly after the challenged sentence, the judge correctly instructed that if "the State has failed to negate beyond a reasonable doubt any one or more of [the elements of the affirmative defense] then you must find the defendant not guilty of felony murder." The judge then accurately instructed: "But if you find that the State has presented proof beyond a reasonable doubt negating one or more of these elements and has also proven beyond a reasonable doubt all elements of the offense charged then you must find defendant guilty of felony murder." The prosecutor similarly argued that it was the State's "burden to convince you beyond a reasonable doubt that one of these things did not exist." Here, defendant's "failure to object points up the fact that experienced counsel did not consider that the use of the words detracted from the clear meaning which the charge as a whole conveyed." See State v. Wilbely, 63 N.J. 420, 422 (1973).

In any event, defendant's claim fails under State v. Walker, 203 N.J. 90 (2010). There, the trial court erroneously failed to give any instructions on the affirmative defense to felony murder. Id . at 89-90. The Supreme Court nonetheless upheld the felony murder conviction, because:

in addition to felony murder, the jury convicted defendant of conspiracy, robbery, reckless manslaughter as a lesser-included offense of knowing or purposeful murder, and possession of a knife. For those convictions, the jury had to conclude that defendant aided the commission of the homicidal act, (reckless manslaughter); possessed a deadly weapon, (possession of a knife); had reason to believe the codefendant was armed with a knife, (conspiracy and reckless manslaughter); and engaged in conduct likely to result in death or serious physical injury, (reckless manslaughter). Thus, the jury, although not charged with the affirmative defense to felony murder, found against defendant on most, if not all, of the four prongs of the defense.

[Id. at 90.]

Here, the jury similarly found that the evidence negated most of the four prerequisites for the affirmative defense by convicting defendant of aggravated manslaughter, unlawful possession of a knife and a machete, first-degree robbery, second-degree burglary, and conspiracy to commit those robbery and burglary offenses. Therefore, "we find no justification to order a new trial" based on the error in the trial judge's otherwise correct instructions. See id. at 91.

VI.

Finally, defendant claims that the prosecutor's summation was "replete with improper comments and so far exceeded the bounds of propriety." Her experienced defense counsel, however, saw no reason to object to any of the comments defendant now cites. Accordingly, "defendant must demonstrate plain error to prevail." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed.2d 89 (2001). "Plain error is 'error possessing a clear capacity to bring about an unjust result and which substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merits of his defense.'" Id . at 576-77 (citations omitted). Furthermore, it is "fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." State v. Macon, 57 N.J. 325, 333 (1971).

Prosecutors are "entitled to argue the merits of the State's case 'graphically and forcefully, '" State v. Smith, 212 N.J. 365, 403 (2012) (quoting State v. Feaster, 156 N.J. 1, 58 (1998) (citation omitted)), "and are afforded considerable leeway in that endeavor." State v. Ingram, 196 N.J. 23, 43 (2008). Prosecutors "may strike hard blows, [but] not . . . foul ones." Feaster, supra, 156 N.J. at 59 (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935)). In examining a prosecutor's comments, "an appellate court will consider whether the offending remarks were prompted by comments in the summation of defense counsel." Smith, supra, 212 N.J. at 404.

In his opening, defense counsel remarked that that "my job and ultimately [the prosecutor's] job, they're really the same." In his summation, the prosecutor responded:

Nothing could be further from the truth because I represent the people of the State of New Jersey and the prosecutor's job is to seek justice. [Defense counsel] represents Germania Terrero and his job is to create reasonable doubt, . . . opposite jobs, ladies and gentlemen.

Courts have repeatedly stated that the prosecutor's job is to seek justice. E.g., Berger, supra, 295 U.S. at 88, 55 S.Ct. at 633, 79 L.Ed. at 1321 (the prosecution's "interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done"); Smith, supra, 212 N.J. at 402-03 ("the primary duty of a prosecutor is not to obtain convictions but to see that justice is done").[8] Nonetheless, defendant now claims that the prosecutor's comment suggested that justice could be served only by conviction, and that reasonable doubt is the opposite of justice. That was not what the prosecutor said, however. Defense counsel's opening inaccurately stated that the two counsel had the same neutral job of "trying to get in front of you everything that's admissible, " with defense counsel having the added role of "trying to ask the questions that you [the jury] might want to have answered." The prosecutor's argument was that defense counsel and he did not have the same job or neutral roles: "we are not friends, we're adversaries." The prosecutor was permitted to correct defense counsel's characterization of the role of a prosecutor.[9]

Defendant next questions the prosecutor's use of the phrase "in your bones":

You know this, in your bones you know this, this is what it comes down to, ladies and gentlemen, and this is what your obligation is with respect to being a sworn juror. In your bones you know that she set this up. And you know Santana is telling you the truth.

Defense counsel, who used similar figures of speech ("search your souls to find justice because . . . justice comes from you, from inside you"), saw nothing objectionable in the phrase "in your bones, " and neither do we. "Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Mahoney, 188 N.J. 359, 376 (2006). Defendant argues that the prosecutor redefined reasonable doubt, but again that was an argument the prosecutor did not make.[10]

Defendant next complains about the prosecutor's argument that defendant was

a woman who makes a living, you know, in the bar scene in West New York. And I'm not casting aspersions or value judgments about how a person makes their living; a person makes their living the way the person makes their living, there's nothing wrong with that.

The prosecutor then summarized the growth in her relationship with Lopez, and her increased role at the restaurant, concluding:

she's worked herself up to the point where she's running the business for Aracelio Lopez. And how is she doing that? Again, ladies and gentlemen, she's doing that because there's a relationship, there's — it's not because of her business acumen, it's because of the relationship between her and Aracelio Lopez.

Defense counsel's "failure to object gives rise to the inference that he did not find the prosecutor's remarks to have crossed the bounds of permissible advocacy." State v. Cherry, 289 N.J.Super. 503, 527 (App. Div. 1995). We agree. "'[A] prosecutor may comment on the facts shown by or reasonably to be inferred from the evidence.'" Wakefield, supra, 190 N.J. at 457 (citations omitted).

Defendant finally claims that the prosecutor improperly disparaged defense counsel's rendition of the testimony of Tanya Navarro, an employee of the restaurant. Navarro testified that "about a month before the robbery, " there was an incident at the restaurant, after which she "gave a ride to [defendant] and her daughter and the cook." Navarro testified that on the night of the robbery, however, defendant's daughter and the cook left earlier than normal, and that Lopez walked Navarro to her car.

In his summation, defense counsel contested the prosecution's theory that the routine at the restaurant was broken on the night of the robbery. He argued that

Navarro testified she gave [defendant's daughter] and [the cook] a ride home that night. Now that's her testimony – I took [defendant's daughter] and [the cook] home on the night of March the 3rd.

Defense counsel claimed that this "testimony" was inconsistent with other witnesses' testimony about how defendant's daughter and the cook got home that night. Defense counsel then argued that "[n]obody remembers anything with consistency – what time they left, what time they closed, who took them home."

In reply, the prosecutor argued:
I'm going to go out on a limb here, ladies and gentlemen, and I'm going to say that Mr. Willis intentionally misled you with respect to the evidence. Okay? Because when you go back and you listen to Tanya Navarro's testimony, never did she say that she drove anyone home that night, she was referring to a different night. She was referring to a night about a week, two weeks beforehand when there was an incident . . . .

The prosecutor then recounted Navarro's actual testimony, concluding that it "was incorrect to say that she ever testified that she drove anyone home that night" of the robbery.

"'[P]rosecutors are prohibited from casting unjustified aspersions on the defense or defense counsel.'" Wakefield, supra, 190 N.J. at 446 (citations omitted). The first inquiry is "whether the prosecutor committed misconduct" by casting "unjustified aspersions." Ibid. Here, defense counsel inaccurately stated the testimony, and the prosecutor had every right to correct that inaccuracy. See Timmendequas , supra, 161 N.J. at 594 ("It does not denigrate the defense . . . to 'speak frankly about what is manifest in the record'"). However, the prosecutor crossed the line when he claimed that defense counsel "intentionally misled" the jury, without any evidence of such intentional misconduct. See State v. Rose, 112 N.J. 454, 519 (1988) (it was improper for a prosecutor to imply that an expert's testimony was fabricated with the assistance of defense counsel because "[t]here was no support in the record for the prosecutor's innuendo"). That the prosecutor prefaced this statement with an acknowledgement that he was "go[ing] out on a limb" rather obviously demonstrates that the prosecutor understood he was exceeding the bounds of advocacy.

Because the prosecutor's aspersion was unjustified we must make the second inquiry "whether the prosecutor's conduct constitutes grounds for a new trial" Wakefield supra 190 N.J. at 446 (quoting State v Smith 167 N.J. 158 181 (2001))

We have explained that in order to meet the second part of that test "the misconduct must have been 'so egregious that it deprived defendant of a fair trial'" Stated differently "[t]o warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense"

Here we cannot find that the prosecutor's remark caused such prejudice particularly as the "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made" Timmendequas supra 161 N.J. at 576

Affirmed Remanded for entry of an amended judgment of conviction consistent with this opinion


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