Opinion
DOCKET NO. A-3809-10T3 DOCKET NO. A-5007-10T3
02-27-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. VICTOR E. AGUIRRE, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. LUIS MACAO a/k/a JAVIER G. ANGUIETAMUELA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant in A-3809-10 (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant in A-5007-10 (Gilbert G. Miller, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief). Appellant Luis Macao filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-11-0998.
Joseph E. Krakora, Public Defender, attorney for appellant in A-3809-10 (Jason A. Coe, Assistant Deputy Public Defender, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant in A-5007-10 (Gilbert G. Miller, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).
Appellant Luis Macao filed a pro se supplemental brief. PER CURIAM
The appeals of co-defendants Victor Aguirre and Luis Macao were calendared back-to-back and are consolidated for purposes of this opinion. They appeal their convictions and sentences and raise similar arguments, including challenging comments by the prosecutor during summation that they claim deprived them of their rights to a fair trial, and the imposition of consecutive sentences on each of the robbery convictions. We affirm.
I.
Defendants Aguirre, Macao and Jose L. Montes de Oca were charged by a Union County Grand Jury in a four-count indictment, No. 08-11-0998, for charges arising from a robbery occurring on July 20, 2008, in Plainfield. They were charged with three counts of second-degree robbery of Herman Ochoa, Eddie Calderon and Elmer Calderon, N.J.S.A. 2C:15-1 (counts one, two and three). Aguirre was also charged with third-degree knowingly or purposefully possessing cocaine, N.J.S.A. 2C:35-10(a)(1) (count four).
We use Eddie and Elmer's first names for ease of reference in this opinion and intend no disrespect.
Prior to trial, Macao moved to sever charge four, the possession charge against co-defendant Aguirre, which Judge Joseph P. Perfilio denied from the bench on May 14, 2010. Immediately before trial, the judge granted the State's motion to dismiss count two, the robbery of Eddie, because the State conceded nothing was taken from him.
Judge Perfilio presided over a four-day jury trial in July 2010. Defendants moved for a mistrial following closing arguments, which the judge denied from the bench. On July 29, the jury returned a unanimous verdict, finding Aguirre guilty of counts one, three and four, and Macao and Montes de Oca guilty of counts one and three.
All three defendants filed motions for a new trial; the judge set aside the verdict against Montes de Oca, but denied Aguirre's and Macao's motions. On November 19, 2010, Aguirre was sentenced to an aggregate custodial term of fourteen years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, consisting of consecutive seven-year terms subject to NERA on counts one and three, and a concurrent four-year term on count four. Macao was sentenced to consecutive five-year terms on counts one and three, subject to NERA, for an aggregate custodial term of ten years. The court imposed joint and several restitution on count three, as well as mandatory fees, fines, and penalties on both defendants. On Macao's Judgment of Conviction (JOC), the judge wrote "$574.00 confiscated is allowed to be applied toward restitution." Aguirre and Macao appeal.
II.
At trial, the State presented the testimony of the following witnesses: Eddie, Elmer and Ochoa; and Detective Edwin Maldonado and Officer Scott Gwinn of the Plainfield Police Department. Macao testified on his own behalf, and was the only witness presented for the defense. The following facts are derived from the testimony at trial.
On July 20, 2008, on East Front Street in North Paterson at around two o'clock in the morning, defendants and witnesses Eddie, Elmer and Ochoa engaged in an altercation after an evening of drinking at different bars. According to Macao, he and Montes de Oca were drinking together that evening at Chez Marie, a bar in Plainfield. Although he saw Aguirre at the bar and knew who he was, they were not there together.
Macao testified that at closing time he and Montes de Oca decided to drive to a diner on Route 22 to meet up with some women they met outside the bar. According to Macao, Aguirre approached them in the parking lot and asked for a ride to the corner. Montes de Oca drove, Macao sat in the passenger seat, and Aguirre rode in the backseat of the car. Rather than proceeding to the diner when they let Aguirre out of the car, Macao and Montes de Oca "parked there and stayed there for a while because [they] were a bit tipsy." Macao testified that after five or ten minutes, he heard noises and after opening his window, saw three men hitting Aguirre, who was on the ground, and he decided to try to help him.
Eddie, Elmer and Ochoa were walking home after leaving bars in the area. Aguirre approached Ochoa, grabbed his shirt collar, demanded $20 that he claimed Ochoa owed him, and broke his chain. Aguirre punched Ochoa in the nose when he was putting the necklace in his pocket, and took his bracelet. He fell to the ground and Aguirre continued to punch him. Elmer and Eddie intervened and helped pull Aguirre off Ochoa. Elmer testified Aguirre then punched him in the face and Macao came out of a parked car and hit him from behind. Aguirre took his necklace during the scuffle and Montes de Oca approached him, but did not make contact. Macao testified that when he tried to intervene, someone came at him; he threw two punches and ran back to the car.
Macao started driving towards Faraones Night Club on East Front Street; Aguirre got into the moving car from a back door but then moved to the front passenger seat, and Montes de Oca chased after the car on foot. Elmer and Ochoa also chased after the car, with Eddie trailing behind until the car was ordered to stop by a police officer. Detective Maldonado had all six men wait on the sidewalk until back-up arrived. While defendants were sitting on the sidewalk, the detective observed Aguirre put his hand in his pocket; the detective told Aguirre to stop and a bag of cocaine fell out. Officer Gwinn testified he found a gold chain on the ground under the driver's side rear door and a crack pipe on the rear seat of the car. Elmer identified the chain as his, but it was missing the medallion.
Eddie, Elmer and Ochoa told Detective Maldonado they had been robbed. They said Aguirre punched them and robbed them, and Macao punched them, but at the time could not identify Montes de Oca as the third person involved. The three defendants were arrested.
Ochoa claimed he had $200, consisting of $50 and $20 bills that was missing after the scuffle. Police confiscated $574 from Macao when he was arrested; he explained he had received his pay of $650 that day.
On appeal, Aguirre argues:
POINT IThrough counsel, Macao argues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A MISTRIAL AFTER THE PROSECUTOR'S IMPROPER COMMENTS DURING CLOSING ARGUMENTS VIOLATED HIS RIGHT TO REMAIN SILENT AND HIS RIGHT TO A FAIR TRIAL.
A. The Prosecutor's Comments During Summations Violated Aguirre's Fifth Amendment Right to Remain Silent.
B. The Prosecutor's Comments Violated Aguirre's Right to a Fair Trial.
C. The Prosecutor's Comments Impermissibly Exceeded the Scope of the Evidence Presented at Trial.
D. The Prosecutor's Comments Were Highly Prejudicial and the Trial Court Should Have Granted Defendants' Motion for a New Trial.
E. The Prosecutor's Comments Were Not Harmless Beyond a Reasonable Doubt.
POINT II
THE TRIAL COURT INCORRECTLY APPLIED THE SENTENCING GUIDELINES IN STATE V. YARBOUGH TO IMPOSE CONSECUTIVE SENTENCES.
A. Under the Yarbough Guidelines There is a Distinction Between "Separate" and "Multiple" Acts of Violence.
B. Aquirre Did Not Commit "Separate" Acts of Violence for Purposes of the Yarbough Sentencing Guidelines.
C. This Court Should Order that Aquirre's Sentences be Served Concurrently.
POINT IIn a pro se supplemental brief, Macao argues:
THE TRIAL COURT ERRONEOUSLY FAILED TO SANITIZE DETAILS OF DEFENDANT'S PRIOR CONVICTION FOR UNLAWFUL POSSESSION OF A FIREARM.
POINT II
THE TRIAL COURT'S JURY INSTRUCTIONS HAD MULTIPLE DEFICIENCIES WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
POINT III
THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL (PARTIALLY RAISED BELOW).
POINT IV
THE COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION FOR SEVERANCE.
POINT V
DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.
POINT IBased on our review of the record and applicable law, we are not persuaded by any of the arguments advanced by Aguirre or Macao.
SENTENCING JUDGE ERRED IN NOT GRANTING 820 DAYS JAIL CREDIT FROM 8/21/2008 TO 11/1/2010. WHERE SENTENCE WAS RAN CONCURRENT WITH THE SENTENCE ALREADY BEING SERVED.
III.
A. Aguirre
Aguirre contends the prosecutor's comments during summation violated his Fifth Amendment right to remain silent, violated his right to a fair trial, impermissibly exceeded the scope of evidence presented at trial, and were highly prejudicial and warranted a new trial.
In summation, defendant Macao's attorney made the following argument:
You heard the testimony of what occurred from the victims. You heard the testimony from Mr. Macao. And he admitted that he has a prior criminal record, which the judge is going to specifically give you a charge on that. He's going to specifically say you can consider that as to whether or not it affects his credibility. That's where I think the issue of the money comes into play. It's a small, little point, bit I think it goes towards the credibility aspect of Mr. Macao.The prosecutor made the following comments in summation:
[(Emphasis added).]
[PROSECUTOR]: You know, [Macao's attorney] also mentioned something about how Mr. Macao came up and he told you about his prior conviction. Well, what choice did he have? I was going to ask him about it. They knew that. That's not necessarily them being forthcoming. That's I know you're going to ask me, I'm going to say it first. You don't have to thank him for that, you know? And why are you allowed to consider the fact that he has a prior criminal conviction,
because if someone has a prior criminal conviction you are entitled to consider whether when they come in here and take the oath to deal with this, whether that shows that they are less likely to take seriously the oath to tell the truth. And that's what the judge is going to tell you. And you know something? Elmer and Eddie and [Ochoa], you didn't see anybody ask them if they had any criminal convictions, and if they did, don't you think one of those three lawyers over there would have asked them about it?
[MONTES DE OCA'S ATTORNEY]: Judge, I'm going to object.
[COURT]: I'm going to sustain that objection. Ladies and gentlemen, whether or not the victims have a criminal conviction is not pertinent in this case, so you can strike that. You can proceed, counsel.
[PROSECUTOR]: You are allowed to consider the credibility of the witnesses, the way they testified. Was there any evidence before you that any of those witnesses — [Eddie], Elmer [], or [] Ochoa — had a prior criminal conviction? No, there was none.
[MONTES DE OCA'S ATTORNEY]: Judge, I'm going to object for the same reason.
[COURT]: Sustained. Counsel, you can't get into this.
[PROSECUTOR]: Your Honor, may we approach?
[Discussion during sidebar]
. . . .
[COURT]: Except the whole point of this is you can't now raise the issue of whether or not a witness had a criminal record because then what does that do? It puts a burden on
the defense to say, well, maybe the guys who didn't testify have a criminal record.
[PROSECUTOR]: I'm not saying that at all, Judge.
[COURT]: Well, that's the implication, okay? So let's not mention any further business about criminal record of the — of the victims, or the alleged victims, and the witnesses, okay? Just go on with the next point. Yes, I'm striking that, okay?
. . . .
[Sidebar concluded]
[COURT]: [Prosecutor], you can go on with your summation in the manner in which we discussed at sidebar, okay?
[(Emphasis added).]
Without further objection, the prosecutor finished his summation, which included the following statements:
Did you hear anything that any of the witnesses — from Eddie or [Ochoa] — they had stated previously that was inconsistent with what you heard here? No, you didn't. Your recollection controls, but I submit that you didn't, so there was no prior inconsistent statements. They got up there on the stand and they told you what happened. You had the opportunity to see them. Did you think that they were trying to deceive you? Do you think that what they said was unbelievable? Do you think that it made sense? Think about what is logical, what is probable, what is reasonable. . . .Following summations, the judge dismissed the jury for the day because it was late.
[(Emphasis added).]
The following morning Aguirre's attorney moved for a mistrial based on the prosecutor's two comments about defense counsels' lack of mention of any convictions of the alleged victims. Other defense counsel joined in the motion. The prosecutor advised it was not his intention to "flout the [c]ourt's instruction, but to find a way to make what [he] thought was a legitimate argument in an acceptable fashion." The judge denied the motion, noting he initially told the jury to strike the comment. He offered, however, to give an additional curative instruction. Macao's counsel stated that the general jury instructions that statements by counsel are not evidence were sufficient and did not wish to have any particular specific charge. Other defense counsel were silent. At the close of trial, the judge gave the routine charge on stricken testimony, that summations are not evidence, that Macao's conviction could be considered solely for credibility purposes, and that Aguirre and Macao had a constitutional right not to testify.
Aguirre contends these comments by the prosecutor were tantamount to introducing evidence that he had prior criminal convictions but the alleged victims had none, which would impermissibly suggest evidence not in the record and prejudice the jury against him. See State v. Feaster, 156 N.J. 1, 58-59 (1998) ("[A] prosecutor's summation is limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom.") (quotation marks omitted). He further argues that the prosecutor's summation included an inappropriate "unsubtle suggestion" that Aguirre and the other non-testifying defendant, Montes de Oca, declined to take the stand in an attempt to deceive the jury as to the truth of what happened and to conceal prior criminal records, which suggestion violated their constitutional rights. See State v. Cooke, 345 N.J. Super. 480, 486 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002) (holding that if a prosecutor indicates or implies a failure by the defense to present testimony, a court must "closely scrutinize" the circumstances of the comment to ensure that a defendant's right to remain silent has not been violated because if a jury could draw from the comments a negative inference regarding defendant's choice not to testify, the Fifth Amendment has been infringed).
Aguirre also argues that Judge Perfilio's single curative instruction was "grossly inadequate" even when considered with the routine instructions and that the prosecutor's comments led to an "unjust result" meriting reversal of his conviction. We are not persuaded by these arguments and are satisfied that, when viewed in the context of the entire trial, the prosecutor's closing remarks neither triggered a mistrial nor unfairly prejudiced defendant.
Whether "a comment by counsel is prejudicial and whether 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) (quotation marks omitted). "The grant of a mistrial is an extraordinary remedy to be exercised only when necessary to prevent an obvious failure of justice." Ibid. (quotation marks omitted). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a clear showing that the defendant suffered actual harm or that the court otherwise abused its discretion." Ibid. (quotation marks omitted).
"[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). We review questions of prosecutorial misconduct by evaluating "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. "Additionally, an appellate court will consider whether the offending remarks were prompted by comments in the summation of defense counsel." State v. Smith, 212 N.J. 365, 403-04 (2012), petition for cert. filed (U.S. Jan. 22, 2013) (No. 12-8377).
We analyze the prosecutor's comments within the context of the whole trial. Feaster, supra, 156 N.J. at 64. A new trial will be conducted only where the misstep was so egregious that it clearly and unmistakably deprived the defendant of a fair trial. State v. Echols, 199 N.J. 344, 360 (2009); State v. Kelly, 406 N.J. Super. 332, 351 (App. Div. 2009), aff'd, 201 N.J. 471 (2010). This standard requires some degree of real possibility that an error led to an unjust result, namely, one sufficient to raise a reasonable doubt as to whether it caused the jury to convict where it otherwise would have acquitted. State v. R.B., 183 N.J. 308, 330 (2005); R. 2:10-2.
We first note that when Montes de Oca's counsel unsuccessfully objected to the comment by the prosecutor during summation, Aguirre's counsel was silent. Aguirre's counsel may have expected his co-counsel's objection to speak for both; however, it would have been preferable if he had independently stated his own objection if he had one. "Nevertheless, the same harmless-beyond-a-reasonable-doubt standard applies even in the absence of an objection at trial." State v. Cabbell, 207 N.J. 311, 338 n.14 (2011).
Considering the prosecutor's summation in context, it is clear his initial comment with respect to criminal convictions was made to contrast only the credibility of the testifying accused, co-defendant Macao, with the testifying victims, and was made in direct response to Macao's counsel's closing remarks implying he was credible as a witness because he had admitted his prior convictions. The prosecutor made no reference, implicit or explicit, to the co-defendants who did not take the stand. Accordingly, we are not convinced from the challenged comments that a reasonable juror would have assumed Aguirre had convictions or otherwise drawn a negative inference about his decision not to testify.
Moreover, the judge, presumably in an abundance of caution, sustained Montes de Oca's counsel's objection, struck the statement, and promptly and clearly advised the jury to disregard as not pertinent to the case whether or not the victims had a criminal conviction. We "presume that juries will follow the court's instructions." State v. Morgan, 423 N.J. Super. 453, 472 (App. Div. 2011), certif. granted in part, 210 N.J. 477 (2012). We are also satisfied the jurors would remember that instruction and disregard as irrelevant and inappropriate the prosecutor's subsequent comment made moments later.
We further note that no objection was made by any defense counsel to the prosecutor's final comments about the jury's ability to observe the alleged victims and determine whether they were attempting to be deceitful. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Frost, supra, 158 N.J. at 83. "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 84. "The failure to object also deprives the court of an opportunity to take curative action." Ibid.
Nor did any defense counsel request any additional curative instructions following Judge Perfilio's denial of the mistrial motion despite the judge's express offer. Based on Aguirre's counsel's silence, we can assume he agreed with the judge that the issue had been dealt with and an additional comment might highlight the statement and "make it worse[,]" and agreed with Macao's counsel's statement expressed to the court that no "particular specific charge" was necessary. Under these circumstances where co-defendant's counsel timely objected, the trial court both sustained the objection and immediately instructed the jury to disregard the comments, and defense counsel sought no further curative instructions, we are not convinced the prosecutor's summation "substantially prejudice[d] [] defendant's fundamental right to have a jury fairly evaluate the merits of his defense." See R.B., supra, 183 N.J. at 333 (first alteration in original).
Aguirre next challenges Judge Perfilio's finding that there were separate acts of violence against two separate victims and his imposition of consecutive sentences on the two robbery counts. He argues the incident was more like a single act of violence and thus concurrent sentences were warranted.
"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." State v. Miller, 205 N.J. 109, 129 (2011). "[T]rial judges have discretion to decide if sentences should run concurrently or consecutively." Id. at 128.
State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
We discern no abuse of discretion in the consecutive sentences; the judge performed an appropriate Yarbough analysis and there were two separate victims, with the robbery of each arguably constituting a distinct act. Defendant's reliance on State v. Espino, 264 N.J. Super. 62 (App. Div. 1993) is misplaced. In that case we agreed with the defendant that attempted escape and aggravated assault against a prison officer did not involve separate acts of violence. Id. at 74. Nonetheless, we affirmed the trial judge's imposition of consecutive sentences for the two offenses on the rationale that the crimes involved multiple victims (the State and the prison guard) and "the public interest in deterring violent assaults upon correctional officers [was] sufficiently important and sufficiently separate from the public interest in preventing prison escapes[.]" Id. at 75.
B. Macao
Macao first argues the court erred in permitting the State to cross-examine him on the details of his prior conviction for second-degree unlawful possession of a handgun without ordering the conviction sanitized pursuant to State v. Brunson, 132 N.J. 377 (1993). According to defendant, a jury likely would conclude that the prior act was highly correlated with the exercise of unlawful force, which was similar to the current charge of robbery, which involved a theft committed through an unlawful exercise of force. N.J.S.A. 2C:15-1.
"A trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011). The State is restricted to "introduc[ing] into evidence only the number, degree, and date of the defendant's prior similar convictions." Brunson, supra, 132 N.J. at 394. There are no limitations on the introduction of defendant's dissimilar convictions. Ibid.
The judge declined to sanitize Macao's record if he testified, concluding the prior weapons conviction was dissimilar to his current charges. We discern no abuse of discretion by the court and no prejudice to Macao by that ruling. There is no allegation in the current case that the crime involved a handgun. Moreover, the jury was specifically instructed in accordance with the model jury charge that it could only consider the prior conviction in assessing the credibility of Macao's testimony and could not use it as evidence of defendant's guilt.
Macao next asserts, as plain error, various deficiencies in the jury instructions that "singularly and cumulatively" deprived him of a fair trial. Specifically, he contends the accomplice liability charge precluded the jury from finding him guilty of theft as a lesser-included offense of the robbery charges unless Aguirre was first acquitted of those robbery charges. He further contends the court's instructions erroneously precluded the jury from considering his guilt of assault under an accomplice liability theory. Macao additionally now challenges as insufficient and prejudicial the hypotheticals the judge used to illustrate the instructions.
Macao also now complains that the judge sua sponte should have given the jury a limiting instruction that, just because there was a crack pipe found in the backseat of the car in which he was driving, did not mean he had a propensity to commit a crime. See N.J.R.E. 404(b) (generally excluding other bad acts); N.J.R.E. 402 (implying a relevancy requirement); N.J.R.E. 403 (excluding evidence when its probative value is substantially outweighed by its propensity for prejudice). Lastly, Macao asserts as a deficiency that the judge spoke inaudibly in key areas of the instruction, which he contends was critical to the jury's capacity to determine his guilt as an accomplice to robbery and is thus grounds for reversal.
We are not persuaded by any of these arguments and discern no error, let alone plain error, singularly or cumulatively in the challenged instructions. Defendant Macao did not object at trial. When a defendant does not object to a jury charge "at trial, we review the charge for plain error and reverse only if such an error was 'clearly capable of producing an unjust result.'" Miller, supra, 205 N.J. at 126 (quoting R. 2:10-2). "Pursuant to Rule 1:7-2, defendant's failure to object [to a jury instruction] constitutes a waiver of his right to challenge that instruction on appeal." State v. Docaj, 407 N.J. Super. 352, 362 (App. Div.), certif. denied, 200 N.J. 370 (2009). "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012).
We "evaluate [the] defendant's claim in light of the totality of the entire charge, not in isolation." Miller, supra, 205 N.J. at 127 (quotation marks omitted). A plain reading of the instructions in their entirety does not lend itself to Macao's interpretations. Judge Perfilio gave the post-Bielkiewicz model jury charge without objection and nothing in that charge indicated that Macao could not be found guilty of theft as an accomplice to Aguirre the robber. In fact, the judge repeatedly told the jurors just the opposite. His examples explained the "purpose" element of accomplice liability. Thus, the unchallenged instructions as a whole correctly conveyed the accomplice liability principles to the jury, and the possibility of confusion was non-existent and clearly not capable of producing an unjust result. See R. 2:10- 2; State v. Cagno, 211 N.J. 488, 516 (2012), cert. denied, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).
State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993).
The police seizure of the glass pipe in the backseat of the car was not other-crimes evidence and could not affect Macao's verdict. Throughout the case, the jurors were advised that the cocaine possession charge only involved Aguirre, who was in the backseat of the car where the pipe was located, was seen by officers discarding the cocaine, and in closing Aguirre's counsel admitted the cocaine belonged to him. Macao testified he was the front seat passenger when co-defendants Montes de Oca drove the car from the bar and Aguirre sat in the rear, which was undisputed. Accordingly, a limiting instruction was unnecessary.
The record reflects that the jurors heard and understood the instructions. It is a non-issue that twice during the charge a juror asked the judge to speak louder because his voice was fading. Each juror was provided a written copy of the entire charge during the judge's reading of the instructions so he or she could follow along. Moreover, no juror had any questions about the instructions during the charge or asked for a read back during deliberations.
Macao also challenges various comments by the prosecutor during summation which he claims singularly and cumulatively deprived him of his rights to due process and a fair trial. He also challenges the prosecutor's comments respecting the victims' lack of criminal records, arguing the comments constituted an improper bolstering of the complaining witnesses' credibility. He contends, at a minimum, to preclude undue prejudice the court should have struck the prosecutor's second remark and issued a strongly worded curative instruction. We do not view the prosecutor's comment as improper bolstering of the State's witnesses; it was fair comment on Macao's counsel's summation. Nevertheless, as previously discussed, the judge sustained Montes de Oca's objection, struck the comment and gave a prompt, clear curative instruction. Although it would have been preferable if the prosecutor had not made the further comment, none of the three defense counsel requested an additional specific cautionary instruction at that time or the following morning. In the totality of the trial, we discern no error in this regard, let alone denial of Macao's right to a fair trial.
Macao renews his objection regarding the prosecutor's comments that common sense and common experience illustrated that fingerprints would not be found on the chain taken from Elmer's neck. The judge properly determined within his discretion that this was fair comment on a defense claim and overruled Macao's objection to the comment. State v. Jackson, 211 N.J. 394, 412-13 (2012).
Macao further challenges, for the first time, the prosecutor's reference to him as "Mr. X" throughout summation, claiming it was inflammatory and prejudicial. We disagree. The remarks were fair comment on the evidence and legitimate strategy by the State of emphasizing Macao's use of multiple names. Moreover, Macao's counsel never objected during summation or during his motion for mistrial.
He testified he falsely identified himself as Luis Macao when he was arrested and his real name was Javier Angueta.
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Macao also renews his argument that defendant Aguirre's cocaine possession charge should have been severed from the trial because it was prejudicial, far beyond "[t]he danger by association that inheres in all joint trials." State v. Brown, 118 N.J. 595, 605 (1990). Specifically, defendant Macao argues the pipe found in the backseat of the car is suggestive that he was in control of it, and was associated with Aguirre, who was being charged with drug possession, and by association Macao was a bad person.
In denying the motion, Judge Perfilio balanced judicial efficiency with the potential prejudice against Macao, and was confident that severance was unnecessary with an appropriate limiting instruction. The judge then repeatedly instructed the jury that the drug charge only pertained to co-defendant Aguirre. Moreover, in summations, Aguirre's counsel admitted he was guilty of possessing the cocaine, and only Aguirre's verdict sheet included that crime.
The defendant bears the burden of proving that joinder is unduly prejudicial. R. 3:15-2(b); State v. Moore, 113 N.J. 239, 273-74 (1988). Our Supreme Court has consistently recognized that the "disposition of a motion for a severance . . . is addressed to the sound discretion of the trial court." State v. Brown, 170 N.J. 138, l60 (2001) (ellipsis in original). Based on the record, Macao has failed to demonstrate that Judge Perfilio abused his discretion by denying severance and that he was exposed to any more prejudice in a joint trial than in separate ones.
We turn now to Macao's sentence. Like Aguirre, he challenges the imposition of consecutive terms for robbery, claiming he met only one criteria under Yarbough and the judge did not articulate his reasons for imposing a consecutive sentence. He further contends that the judge had no authority to "confiscate" his money and apply it to the restitution order. The State concedes that although the judge did not explain his reasons for the consecutive sentence, the issue was discussed at co-defendant Macao's sentencing hearing when the court reiterated the prosecutor's position from the Aguirre sentencing hearing, and the prosecutor elaborated for the record that there were two separate victims.
Although the judge did not articulate his reasons pursuant to State v. Marinez, 370 N.J. Super. 49, 59-60 (App. Div.), certif. denied, 182 N.J. 142 (2004), the judge's reason for imposing the consecutive sentence is obvious from the record and the prior detailed explanation in the Aguirre sentencing hearing. See State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.) (upholding consecutive sentences for murder and attempted murder because the crimes were separate and there were two different victims, noting that although the judge did not "carefully articulate" his reasons, "the facts and circumstances [left] little doubt as to the propriety of the sentence imposed"), certif. denied, 177 N.J. 492 (2003). As previously discussed with regard to Aguirre's appeal, we discern no error in Judge Perfilio's imposition of consecutive terms for co-defendant Macao.
We are not convinced the trial judge erred in directing that the money found on Macao's person be applied towards the restitution order.
We also consider Macao's argument regarding jail credit raised in his supplemental brief to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
We affirm the convictions and sentences on both appeals.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION