August 8, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOSE ROJAS-HERNANDEZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 10, 2013
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-06-1195.
Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).
Before Judges Sapp-Peterson and Haas.
A jury convicted defendant of second-degree robbery, N.J.S.A. 2C:15-1b, as a lesser-included offense of first-degree robbery, N.J.S.A. 2C:15-1a and, at sentencing, the court imposed a seven-year custodial sentence with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court also imposed appropriate fines, penalties and costs. On appeal, defendant raises the following points:
THE TRIAL COURT ERRED, TO DEFENDANT'S PREJUDICE, BY PROHIBITING THE DEFENDANT FROM CROSS-EXAMINING THE COMPLAINANT AS TO HIS IMMIGRATION STATUS. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT BY REPEATEDLY FORCING THE DEFENDANT TO CHARACTERIZE STATE'S WITNESSES AS UNTRUTHFUL, AND BY CASTING PERSONAL ASPERSIONS ON THE DEFENDANT. (PARTIALLY RAISED BELOW).
A. Requiring Defendant to Characterize Other Witness'[s] Testimony As Untruthful.
B. Casting Personal Aspersions Upon Defendant, Including Alleging Impecuniosity.
C. This Clear Misconduct Necessitates Reversal As Plain Error.
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION. U.S. CONST., AMENDS. V, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
After reviewing the record and the applicable law in light of the contentions advanced on appeal, we reject all of defendant's arguments. We therefore affirm.
The relevant facts supporting defendant's conviction established that defendant confronted the victim in an alleyway of the victim's workplace, a local restaurant in Lakewood, shortly after the victim exited the rear of the restaurant. According to the victim, defendant approached him and would not allow him to pass. Defendant then stuck his hand in his pocket, motioned as if he was pulling something out and said, "'Give me your money.'" The victim testified that he became frightened and defendant started "throwing blows, " striking him once or twice, as he put his hands up in the air and started backing up, in an effort to get away from defendant. It was not until two men arrived, who the victim initially believed were defendant's friends but later learned were police, that he was able to get away from defendant, at which time he ran back into the restaurant. Two plainclothes police officers, Jason Pedersen and Leroy Marshall, who were parked across the street and witnessed defendant throwing punches and attempting to grab the victim, also testified. According to their testimony, they exited their vehicle and approached the two men, ordering defendant to stop. He did not comply, and following a brief struggle with them, was finally restrained.
Defendant, who is Hispanic, testified on his own behalf through an interpreter. He testified that on the day of the incident, he had boarded the wrong bus and ended up in Lakewood and that he had been looking for "fellow countrymen" in the hope that they would be able to help him. One person gave him five dollars and shared a beer with him. When he saw a man in the alleyway, he asked him for money, making gestures with his hands as he did so. He explained that "most Hispanics, when they are speaking, they make gestures with their hand. And [the man] must have thought that I was trying to hit him, but, no, I never did hit him." The man said, "No, I have no money." He told him, "[t]hat's okay, " and walked away. He was then approached by policemen, who arrested him. When he approached one officer to inquire why he was being arrested, the officer sprayed him in his eyes. He pulled away from the officer, but was then pushed against the wall and asked about money that he had allegedly stolen. He told the officer that he did not have any money and was cold.
Ana Matias, a defense investigator, also testified. She interviewed the victim who told her that he did not initially realize the two men who approached him were police officers and, therefore, ran back into the restaurant. He never yelled for help and when he returned to the restaurant said nothing to his co-workers about the incident before police entered the restaurant about five minutes later. Matias, was also prepared to testify that during her interview of the victim, he volunteered that he was from Guatemala and was in this country illegally. The court ruled that testimony about the victim's immigration status would not be permitted, concluding that its relevance was minimal and far outweighed by its prejudicial effect.
We review a trial court's evidentiary rulings under an abuse of discretion standard. State v. McGuire, 419 N.J.Super. 88, 135 (App. Div. 2011). A trial court's evidentiary rulings will not be disturbed on appeal absent a showing of a clear abuse of discretion, meaning, a clear error in judgment. State v. J.A.C., 210 N.J. 281, 295 (2012). We find no abuse of discretion in the trial court's ruling here because the probative value of cross-examining the victim on his immigration status or permitting Matias to testify that he admitted that he was an illegal immigrant did not substantially outweigh the risk of prejudice to him, resulting from the disclosure of such evidence. State v. Swint, 328 N.J.Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000).
The defense theory is that the victim and defendant were fighting and that when police arrived, the victim left the scene and later fabricated a robbery story in an effort to avoid deportation due to his illegal immigration status. Apart from urging that the court abused its discretion in excluding this evidence, defendant argues that the court's reasoning was flawed because it reached its decision based upon a wholesale acceptance of the victim's testimony before contrary testimony had been received. Defendant further contends the court improperly took into consideration its ruling that the State was precluded from inquiring of defendant's immigration status, should he testify, when under State v. Garfole, 76 N.J. 445, 452 (1978), "a lower standard of degree of similarity of the offenses may justly be required of the defendant using other — crimes evidence defensively than is exacted from the State when such evidence is used incriminatorily." Finally, defendant contends that the court's expressed concern about bias against non-citizens and the possible chilling effect upon them in reporting crimes, does not overcome defendant's Sixth Amendment right to confront witnesses.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the State of New Jersey Constitution guarantee a criminal defendant the right to confront those who testify against him. U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; State v. Cabbell, 207 N.J. 311, 328 (2011); State v. Gaikwad, 349 N.J.Super. 62, 86 (App. Div. 2002). The right to cross-examine a witness lies at the heart of the right to confrontation embodied in the Sixth Amendment. Gaikwad, supra, 349 N.J.Super. at 86. Ibid. Impeaching the credibility of witnesses is one of the primary reasons for cross-examination. Id. at 87.
A defendant's right to confront his accusers, though guaranteed, is not absolute. State v. Harvey, 151 N.J. 117, 188 (1997). The right of confrontation is not a right to "roam at will under the guise of impeaching credibility." Gaikwad, supra, 349 N.J.Super. at 87 (quoting State v. Engel, 249 N.J.Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991)). Relevancy and the necessity for a fair resolution of the issues are the key considerations. See State v. Garron, 177 N.J. 147, 171 (2003).
We have previously observed that a witness's immigration status "is very likely to trigger negative sentiments in the minds of some jurors." See Serrano v. Underground Utils. Corp., 407 N.J.Super. 253, 274 (App. Div. 2009). That said, where the probative value of disclosing the immigration status of a witness outweighs the likely prejudice to that witness stemming from such disclosure, a defendant's right to a fair trial by confronting a witness on that issue must prevail.
Here, defendant failed to establish that the probative value of this evidence substantially outweighed the likely prejudice that would result from disclosure. The defense theory of the case was that the two men were fighting and the victim made up the robbery in an effort to detract from his illegal status. Apart from the fact that defendant denied that there had been a fight between him and the victim, whether a robbery or a fight, we agree as the trial judge found that the probative value of this evidence was minimal given defendant's testimony acknowledging that he approached the victim, had his hands in his pockets, asked for money, gesturing as he did so.
We therefore conclude that the trial judge did not abuse his discretion in prohibiting questioning about the victim's illegal immigrant status. The limited probative value of the victim's immigration status did not outweigh the significant potential to unfairly prejudice the jury against him. Consequently, we reject defendant's argument that the trial judge improperly excluded this line of questioning.
We agree with defendant's contention that the prosecutor's cross-examination, during which he used words like "trained police officers" and "incorrect" in challenging defendant's explanation that his actions were misinterpreted by both the victim and police, was improper. While a jury may consider a police officer's background, training and experience in assessing an officer's credibility, neither officer provided any testimony about their training. Thus, the question was improper and could be construed as a veiled attempt to suggest that the officer's testimony was more credible than that of defendant's because of their status as police officers. State v. R.B., 183 N.J. 308, 331-32 (2003). Likewise, the prosecutor's repeated use of the word "incorrect" when confronting defendant with the witnesses' testimony versus defendant's version of the events could also be viewed as an attempt to have defendant characterize his testimony as untruthful — thereby invading the province of the jury. State v. McLean, 205 N.J. 438 (2011).
However, because defendant did not object to the prosecutor's cross-examination or summation, we examine the errors under the plain error standard, namely whether the prosecutor's cross-examination and summation was so egregious that but for this conduct, the jury reached a verdict it might not otherwise have reached. Rule 2:10-2. Measured under that standard, we are satisfied there was no error capable of producing an unjust result.
The evidence against defendant was substantial. He never denied confronting the victim. The victim's testimony was corroborated by the observations of the plainclothes officers. Moreover, the trial judge gave appropriate instructions to the jury on assessing credibility. Finally, the prosecutor's reference to the victim being a hard worker, implied that defendant was not a hard worker, not that he was unemployed. Defendant's employment status was placed before the jury by defendant. He testified that he was employed doing sheet rock installation three or four days per week and had been looking for a position that would have given him a full week of work when he became lost on the bus. Thus the remark, although irrelevant, was not likely to be construed as comparing the employed victim with an unemployed defendant. It was not repeated and when considered under the plain error standard, was not so egregious that it deprived defendant of a fair trial. State v. Echols, 199 N.J. 344, 360 (2009).
The court imposed a seven-year custodial sentence. The range of sentence for a second-degree offense is five to ten years. The court properly considered the statutory aggravating and mitigating factors, N.J.S.A. 2C:44-1a and b, before finding three aggravating factors and no mitigating factors. We will only modify sentences "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). The aggravating factors the court found, N.J.S.A. 2C:44-1(a)(3), (6) and (9), are supported by the record. Therefore, the sentence imposed does not shock the judicial conscience. Ibid.