August 14, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JULIO GRACIANO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-01-0041.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a supplemental pro se brief.
Before Judges Messano and Lihotz.
Following a jury trial, defendant Julio Graciano was found guilty of the first-degree knowing and purposeful murder of Elisha Wordelman, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); three counts of the lesser-included offense of second-degree aggravated assault of Jermar Roberts, John Boyd, and Byron Stevenson, N.J.S.A. 2C:12-1(b)(1) (counts four, five and seven); and one count of the lesser-included offense of third-degree aggravated assault of Evette Frasier, N.J.S.A. 2C:12-1(b)(2) (count six). In a separate trial, the jury found defendant guilty of second-degree possession of a weapon by certain persons, N.J.S.A. 2C:39-7(b) (count eight).
The judge sentenced defendant as follows: after merging count two into count one, fifty-five years imprisonment with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent five-year term on count three; a consecutive ten-year term on count four, with an eighty-five percent parole disqualifier; eight-year terms on counts five and seven, concurrent to count one and to each other; a concurrent four-year term on count six; and a concurrent nine-year term, with a five-year parole disqualifier, on count eight.
Defendant raises the following points on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF INFORMATION WHICH CAME TO THE ATTENTION OF THE JURY DURING DELIBERATIONS, AND WHICH THE PARTIES HAD AGREED WOULD NOT BE ELICTIED DURING THE COURSE OF THE TRIAL BECAUSE OF ITS PREJUDICIAL AND INFLAMMATORY NATURE
POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A STATE'S WITNESS INFORMING THE JURY THE DEFENDANT HAD BEEN INCARCERATED FOR A SIGNIFICANT PERIOD OF TIME (NOT RAISED BELOW)
POINT III: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
In a separate pro se brief, defendant raises the following additional points:
Point I: The defendant's rights to due process of the 14th amendment were violated when [the] jury failed to find defendant guilty beyond "reasonable doubt" to "knowingly and purposely" murder dependent on flawed and vague jury instructions.
Point II: The judge erred by failing to furnish and [r]e[-]charge [the] jury with partial verdict instructions that would have alleviated [its] confusion in reaching a unanimous count, or accept partial verdict.
Point III: Prosecutorial misconduct
utilizing inflammatory remarks, to induce a bias depiction to jurors during summation and cross examination.
Point IV: The court erred when evidence was suppressed that was exculpatory to the defendant['s] 1st and 6th amendment right[s] to have evidence tried by [the] jury.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The evidence of defendant's guilt was substantial.
Elizabeth Lantigua, defendant's girlfriend, lived at one of four apartment buildings comprising Riverview Towers in Paterson. Between 10:00 and 11:00 p.m. on July 27, 2007, she was waiting in the lobby of her building for a pizza delivery. A dark skinned man complimented Lantigua on her cell phone and pretended to try and take it from her. Lantigua called defendant and told him that there was "some loco guy" who wanted to take her phone, but who "was just playing around with me." Lantigua's and defendant's phone records revealed several more calls were made between them.
Wilmer Marte, defendant's friend, was with defendant and several others that evening drinking in front of School 24 when defendant received a call from Lantigua. Defendant became angry during the call and afterwards said that someone had tried to "disrespect" Lantigua. Defendant walked away in a hurry, and Marte, Carlos Rojas, Angie Rodriguez, Manny Jacquez and Yokasta Gomez got into Jacquez's white van to look for him.
Once found, they convinced defendant to get into the van by telling him that they would take him wherever he wanted to go. Defendant said he wanted to go to his home, and along the way, he received additional phone calls. He told Marte that a "guy touched his girl's butt."
After arriving at his house, defendant went inside while the others waited outside. After two or three minutes, defendant returned to the van and asked to be driven to his "girl['s] house." When the van arrived at Riverview Towers, defendant remarked, "I think that's them." He told Jacquez to pass in front of the building, make a U-turn, and drop him off. At the time there were a lot of people outside the apartment complex.
Marte and Jacquez both testified that defendant fired several shots toward the apartment complex from the window of the van as it passed. Marte saw a small automatic handgun in defendant's hand. Gomez essentially corroborated these events.
Rodriguez, who claimed to be drunk, initially did not identify defendant as the shooter. However, several weeks later in a formal statement, she told police that defendant fired the shots. Defendant subsequently told Marte and Jacquez that he fired the shots to scare people, and he would take full responsibility.
Jermar Roberts, Wordelman's fiancé, saw a white van drive by, heard shooting and saw an arm extending from the passenger side of the van pointing in his direction. He fell to the ground as shots rang out. After the shooting stopped, Roberts saw Wordelman lying on the ground with blood coming from her right temple. She died from the wound.
Evette Frasier, John Boyd and John Stevenson were all standing near Roberts. Each testified in a similar fashion.
Officers Riccardo Scharon and John Kelly of the Paterson Police Department were in the immediate vicinity and heard what sounded like gunshots. When they arrived in front of Presidential Boulevard, they saw a female lying on the sidewalk with an African-American male, later identified as Roberts, holding her head. She was unconscious, unresponsive and bleeding from the head. Roberts told them that two Hispanic males in a small, white minivan drove by firing shots.
All the shells and bullets recovered from the scene and from Wordelman were determined to have been fired from the same gun. However, no gun was recovered.
Defendant elected not to testify and no defense witnesses were called.
On re-cross-examination, Rodriguez was asked whether she had any doubts in late July and August 2007 that defendant actually fired shots from the van. She admitted she did. Defense counsel asked Rodriguez whether she had doubts "[u]p until August 14[, ]" the day she gave her statement to police. Rodriguez responded, "I'm not sure. I mean, maybe I did have a doubt, but he [defendant] never got released from prison."
The judge subsequently gave the following instruction without objection:
[W] hether someone is or is not or was or was not incarcerated has nothing to do with what you have to decide, do you follow me? And it's something that in response to the last question where she mentioned the word "prison, " I'm striking that, all right? Which means . . . that you cannot use it in any manner or any fashion during the course of your deliberations.
I know you can't forget something when you hear something, you follow me? So, I'm telling you, you can remember it, but you cannot use it if you think you have to at any time.
Defendant argues in Point II that the witness's comment was so prejudicial as to deny him a fair trial. We disagree.
"[W] hether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)). Therefore, "when inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was clearly capable of producing an unjust result." Id. at 397-98.
Here, the remark was fleeting and made in response to defense counsel's persistent questioning. The judge sua sponte called for a sidebar and provided a curative instruction to which there was no objection. There was no error.
On the third day of trial, defendant moved for a mistrial because newspaper articles mentioned that Wordelman had been pregnant when killed. It is undisputed that defense counsel and the prosecutor agreed not to introduce this evidence because of its prejudicial nature. The judge denied the motion, holding that defendant's concerns were speculative; he again told the jurors not to read or listen to anything about the case.
After deliberating nearly fourteen hours over several days, the jury sent the judge a note advising that juror fourteen wanted to speak to the court regarding exhibit S-44, a receipt for evidence from the State Police Lab that referred to Wordelman as the "pregnant victim." Defense counsel acknowledged that he and the prosecutor failed to notice the reference in the document.
Without objection, the judge told the jury to write down the specific question it had regarding S-44. The jury sent out a note, authored by juror fourteen, who the judge described as "clearly pregnant." The note indicated that the jury just noticed S-44's reference to Wordelman's pregnancy. Juror fourteen acknowledged telling the other jurors, "I knew that." She explained that her husband told her of a newspaper article regarding a case in which a pregnant woman had been shot, but she told her husband she was not permitted to know anything about the case. Seeing the reference in S-44 caused her to make the link between her husband's comment and this particular case. The juror showed the other jurors the note before sending it to the judge.
The judge then questioned juror number 14 at length. She advised that the conversation with her husband took place within the last week, but she initially had not told any other jurors about it. The juror indicated she could remain fair and impartial.
The judge determined he would give a "strong curative instruction" to the jury. The State agreed, but defendant renewed his request for a mistrial. In denying defendant's motion, the judge stated:
[T]he prejudice resulting from the error is of a nature which can be effectively cured by . . . instruction . . . .
I asked [juror 14] . . . if she could still be fair and impartial having this knowledge and she said yes she could.
I think that since it's one minor line in a lab report which I think is obviously hearsay . . . I think a curative instruction is what should be done here.
The judge provided the following curative charge:
S-44 contains language specifically and I quote in part, "The pregnant victim, comma, Elisha R. Wordelman, " end quote. I instruct you to ignore that phrase. There is no proof submitted in this case . . . that the victim . . . was pregnant at the time that she died. This is considered a hearsay statement, it is not reliable. I instruct you and I instruct you vigorously and as forcefully as I can that you should not consider for any purpose or reason whatsoever that the victim is alleged to have been pregnant at the time of her death.
There has been no proof submitted in this case whatsoever. This case must be decided strictly and solely on the facts and on the law and not on any bias, passion, prejudice, sympathy at all; strictly on the facts as you find them to be.
So . . . in the course of your deliberations and in the course of making your decision you are not to consider that phrase that is written in S-44. It is not evidence and it should be ignored by you and not considered by you in any way.
Defendant argues that his motion for a mistrial should have been granted.
"[A]n appellate court will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." State v. Jackson, 211 N.J. 394, 407 (2012) (citation omitted) (alteration in original). As noted above, whether the admission of otherwise inadmissible evidence requires the drastic remedy of a mistrial, or is more appropriately addressed through a curative charge, is peculiarly within the trial court's discretionary authority. Yough, supra, 208 N.J. at 397. "[W]hen inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).
Here, before deciding to give the curative instruction, the judge spoke to the trial judge who advised that, in his opinion, a curative instruction was adequate. The judge gave a forceful instruction that we presume the jury followed. State v. Smith, 212 N.J. 365, 409 (2012) (citing State v. Loftin, 146 N.J. 295, 390 (1996)).
Defendant never asked that juror fourteen be excused, and he does not make that argument before us. Nonetheless, we take this opportunity to note that the procedure used by the judge was entirely appropriate.
In addressing the nature, extent and impact of a juror's exposure to extraneous information,
[t]he court is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby. The trial court must then determine whether the trial may proceed after excusing the tainted juror or jurors, or whether a mistrial is necessary.
[State v. R.D., 169 N.J. 551, 558 (2001) (citations omitted).]
Here, the judge thoroughly questioned juror fourteen and determined she was able to continue her fair and impartial deliberations. There was no error.
We have difficulty discerning some of the arguments made in defendant's pro se brief. For example, he claims that the jury instructions regarding knowing and purposeful murder were "flawed and vague." However, defendant cites to no particular offending portion of the charge, and our review indicates the instructions essentially complied with the model charge.
In its seventh day of deliberations, the jury sent out the following note to the judge:
If we decided on six of the seven counts including number one, do we have to come to an agreement on all seven, or is it a hung jury? We're not saying we can't on the one we're missing, but we haven't so far. Over defendant's objection, judge indicated he was not going to respond, in part, because the jury did not state it was deadlocked. Before the judge actually ruled, the jury sent out another note stating, "You can disregard the other question. We have reached a verdict."
Defendant contends that the judge erred in not responding and telling the jury it could return a partial verdict. In our opinion, there was no error because, before the judge had a chance to respond to the first note, the jury indicated it had reached a unanimous verdict.
Defendant also argues that comments made by the prosecutor in summation require reversal. The issue arose in the following context.
Defense counsel had essentially conceded in his summation that defendant fired the gun, but he argued that the State failed to prove that defendant acted intentionally. He told the jury: "Was it stupid? No doubt about it. . . . And I'm [not] trying to be insulting to you telling you, hey, nothing happened here . . . . What we have to figure out is what [defendant] is responsible for."
In her summation, the prosecutor responded:
Well, we don't even have to worry about whether or not [the witnesses] lied when he said he was shooting a gun, because counsel has already agreed he shot the gun. That makes them more credible.
So, the only thing you really have to decide is whether this is a murder a [sic] whether this is aggravated manslaughter. That's the only issue, I believe, that is before you. . . . What about the fingerprints on the car? Gee, if we just had fingerprints. First of all, you kind of don't need them because counsel has already admitted his client fired the gun.
At the close of her statement, the prosecutor remarked, "[H]e certainly is guilty of the murder." There were no objections.
"New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." Smith, supra, 212 N.J. at 402-03 (citations omitted). A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006).
The prosecutor is permitted to vigorously rebut specific arguments made by defense counsel. See State v. Mahoney, 188 N.J. 359, 376-77 (2006) (holding a "prosecutor's comment . . . placed an unforgiving and harsh glare on . . . defense" but was permissible). "A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
"Our task is to consider the fair import of the State's summation in its entirety." State v. Jackson, 211 N.J. 394, 409 (2012) (quotation marks and citation omitted). "In every instance, the performance must be evaluated in the context of the entire trial . . . ." State v. Negron, 355 N.J.Super. 556, 576 (App. Div. 2002). Moreover, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J.Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
It is improper for a prosecutor to declare a personal opinion regarding defendant's guilt because it may convey to the jury knowledge of facts outside the evidence. State v. Wakefield, 190 N.J. 397, 440 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed.2d 817 (2008). However, that is not what occurred here. In the first comments cited above, the prosecutor was focusing the jury's attention upon the essential issue in the case, i.e., defendant's mental state. Although her statement regarding defendant's guilt as to murder was inartful, it did not convey a personal opinion or suggest information outside the evidence.
Lastly, defendant claims that the State failed to turn over exculpatory evidence, specifically, a video tape of the area around School 24 that would have shown him getting into a green van rather than a white van; a separate shell recovered at the scene of the shooting; and phone records of conversations between him and Lantigua. The argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). We add only the following.
Pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the State must provide defendant with any material, exculpatory evidence. See State v. Morton, 155 N.J. 383, 413 (1998) (same). To establish a Brady violation, defendant must demonstrate that the prosecutor failed to disclose the evidence, the evidence was favorable to defendant, and the evidence was material. State v. Mustaro, 411 N.J.Super. 91, 101 (App. Div. 2009). Nothing in the record supports the conclusion that the State failed to disclose any of the evidence.
At sentencing, the judge found as aggravating factors, the risk that defendant would re-offend, defendant's prior criminal history, and the need for deterrence. N.J.S.A. 2C:44-1a(3), (6), and (9). The judge found no mitigating factors. N.J.S.A. 2C:44-1(b). The judge also noted that the circumstances of the crimes were "especially suitable" for the imposition of consecutive sentences:
The crimes involve separate acts of violence. There were multiple victims. There has been numerous convictions here, and there can be no free crimes in a system for which punishment shall fit the crime.
Defendant claims that the sentence imposed was manifestly excessive. In particular, he argues that two of the three aggravating factors, his prior criminal record and the risk that he would commit another offense, were not supported by the record. In addition, he argues that the judge should have considered his youth -- he had just turned twenty at the time of the offenses -- as a non-statutory mitigating factor.
Defendant further claims that consecutive sentences were inappropriate under the guidelines established in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d (1986). Defendant contends that the murder of Wordelman and the aggravated assault upon Roberts were part of a single criminal episode and "did not involve separate acts of violence . . . ."
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotations and citation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Defendant had a prior conviction from 2005 for aggravated assault and unlawful possession of a weapon, for which he received a five-year term of probation. In 2006, he was charged with aggravated assault and weapons possession and was on bail at the time of the offense in this case. A violation of probation was also pending. Aggravating factors three, six and nine were amply supported by the record.
Age of a defendant is not a statutory mitigating factor. Bieniek, supra, 200 N.J. at 610. Nonetheless, the judge was "mindful" of defendant's age and undoubtedly incorporated it in the calculus used to impose sentence. In short, the aggravating factors were supported by the record, the judge considered defendant's youth, and the sentence imposed does not shock the judicial conscience or otherwise reflect a mistaken exercise of the judge's broad discretion.
"When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal. . . . However, if the court does not explain why consecutive sentences are warranted, a remand is ordinarily needed for the judge to place reasons on the record." Miller, supra, 205 N.J. 129 (citations omitted).
The Yarbough factors are well-known:
(1) There should be no "free crimes" in a system where punishment fits the crime.
(2) The reasons for consecutive or concurrent sentences should be separately given.
(3)The court should consider the facts of the crime, including whether:
(a) the crimes and their objectives were independent of each other;
(b) the crimes involved separate acts of violence;
(c) the crimes were committed at separate times or places, rather than indicating a single period of aberrant behavior;
(d) the crimes involved multiple victims;
(e)the convictions are numerous.
(4) There should be no double counting of aggravating factors.
(5) Successive terms for the same offense should ordinarily not equal the punishment for the first offense.
[Yarbough, supra, 100 N.J. at 643-44.]
These factors should be applied qualitatively, not quantitatively. State v. Carey, 168 N.J. 413, 427 (2001). The focus is on the gravity of the offense. Id. at 422. A court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences. Id. at 427-28; see also State v. Swint, 328 N.J.Super. 236, 264 (App. Div.) (even when offenses are connected by a "unity of specific purpose, " "somewhat interdependent of one another, " and "committed within a short period of time, " concurrent sentences need not be imposed) (internal quotation marks omitted), certif. denied, 165 N.J. 492 (2000). Crimes involving multiple deaths or victims who have sustained serious body injuries represent especially suitable circumstances for the imposition of consecutive sentences. Carey, supra, 168 N.J. at 428.
We find no mistaken exercise of the judge's discretion in imposing consecutive sentences.