Opinion
DOCKET NO. A-3093-13T2
02-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. GERARDO GOMEZ, a/k/a KNUCKLES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Espinosa and Rothstadt. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2688. Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant was charged, along with others, for his involvement in a murderous late night attack in a Newark schoolyard on August 4, 2007, that resulted in the deaths of three of their victims, Terrance Aeriel, Dashon Harvey, and Iofemi Hightower. A fourth victim — Natasha Aeriel — was slashed, shot, and sexually assaulted; she survived. At the conclusion of a lengthy trial in October and November 2012, defendant was convicted of: second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; four counts of first-degree armed robbery, N.J.S.A. 2C:15-1; three counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; N.J.S.A. 2C:11-3(a)(1), (2); three counts of first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1), (2); and first-degree attempted murder, N.J.S.A. 2C:11-3(a)(1), (2).
The 2008 indictment charged defendant and five others — Rodolfo Godinez, Alexander Alfaro, Shahid Baskerville, Jose Carranza and Melvin Jovel — with regard to their participation.
Defendant was acquitted of: third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4(a); fourth-degree unlawful possession of a weapon (a machete) under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon (a machete) for an unlawful purpose, N.J.S.A. 2C:39-4(d).
At sentencing on January 9, 2013, after appropriate mergers, the trial judge sentenced defendant to: consecutive sixty-year prison terms, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the three murder convictions; a consecutive fifteen-year prison term, also subject to NERA, on the attempted murder conviction; and concurrent fifteen-year prison terms on the four robbery convictions.
Despite the considerable passage of time since entry of the January 11, 2013 judgment of conviction, we granted defendant leave to file a notice of appeal out of time on March 31, 2014. In his appeal, defendant argues:
Baskerville entered into a plea agreement after the State's motion to try him as an adult was granted. The other defendants were convicted at the conclusion of separate trials. All five filed direct appeals. Baskerville appealed the waiver decision and argued the sentence imposed was excessive. We rejected those arguments. State v. Baskerville, No. A-2695-12 (App. Div. May 19, 2015). We affirmed the convictions and sentences imposed on the other four defendants. State v. Godinez, No. A-6205-09 (App. Div. Apr. 2, 2014), certif. denied, 220 N.J. 40 (2014); State v. Alfaro, No. A-6163-10 (App. Div. Nov. 12, 2013), certif. denied, 217 N.J. 623 (2014); State v. Carranza, No. A-4139-11 (App. Div. Nov. 6, 2013); State v. Jovel, No. A-2421-10 (App. Div. Oct. 15, 2012), certif. denied, 213 N.J. 535 (2013). We also previously granted interlocutory review, and reversed, an order denying defendant's motion to suppress custodial statements. State v. Gomez, No. A-0313-09 (App. Div. Aug. 30, 2010).
I. THE TRIAL COURT COMMITTED ERROR IN PERMITTING EVIDENCE OF PRIOR CRIMINAL ACTIVITY AND/OR [SIC] DISPOSITION UNDER N.J.R.E. 404(b).
(a) The Trial Court Erred In Allowing Evidence Of Defendant's Purported Gang Affiliation [Be-
cause the First, Third and Fourth Cofield Prongs Were Not Met].
(b) The Trial Court Committed Error In Allowing Evidence Of Defendant's Prior Drug Use, In Violation Of N.J.R.E. 404(b).
We find no merit in these arguments.
II. THE TRIAL COURT ERRED IN PERMITTING EVIDENCE OF THE ALLEGED SEXUAL ASSAULT UPON [NATASHA], IN WHICH DEFENDANT HAD NO INVOLVEMENT AND HAD NO PROBATIVE VALUE, AND FAILED TO GIVE AN ADEQUATE LIMITING JURY INSTRUCTION (NOT RAISED BELOW).
III. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO OBJECT TO, AND AGREEMENT TO, ADMISSIBILITY OF EVIDENCE OF AN ALLEGED SEXUAL ASSAULT DURING THE ROBBERY (NOT RAISED BELOW).
IV. THE SENTENCE OF 195 YEARS, 85% PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE.
V. THE COURT ERRED IN SENTENCING THE DEFENDANT TO CONSEC[U]TIVE SENTENCES WHEN IT MISAPPLIED THE GUIDELINES IN STATE V. YARBOUGH.
State v. Cofield, 127 N.J. 328, 338 (1992).
We have combined the subparts in the language of Point I(a) for our convenience.
State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
We have described in some detail the events in question in prior appeals. See, e.g., Carranza, supra, slip op. at 3-8; Alfaro, supra, slip op. at 3-7; Godinez, supra, slip op. at 3-8. Briefly, on the evening of August 4, 2007, the four victims, all young adults, were together at the Mt. Vernon School playground in Newark. Two Hispanic men — later identified as Godinez and Jovel — were sitting on the bleachers, talking and drinking beer. In a short while, Terrance Aeriel texted Natasha Aeriel that "It's time to go." Natasha noticed four additional young males — later identified as Alfaro, Baskerville, Carranza and defendant, who was then fifteen years old — had entered the school parking lot and that Terrance was swiftly walking toward their car with a "real serious" look on his face. The four newcomers joined Godinez and Jovel, and as this group began talking together, Natasha told Hightower and Harvey it was time to leave.
Before the four victims could get into their car and drive off, the six defendants rushed toward them and ordered them out of the vehicle and onto the ground. As the four were robbed, Natasha saw that two of the assailants were holding handguns. Other evidence revealed that Jovel was armed with a .357 magnum Colt revolver, defendant had an inoperable .32 caliber revolver, Alfaro held a machete, and Carranza was in possession of a twelve-inch kitchen knife.
Natasha was sexually assaulted by two of the culprits while the other victims were walked down a nearby stairwell by the remainder of the group, including defendant. Natasha soon heard gunshots from that direction. One of her assailants swung at her neck with a kitchen knife, causing serious injuries. As Natasha pushed him away and tried to flee, a bullet struck behind her left ear, causing her to fall and pass out.
Only Baskerville and Carranza were charged with aggravated sexual assault. Baskerville pleaded guilty to one count of aggravated sexual contact, N.J.S.A. 2C:14-3(a). Carranza was acquitted of those charges.
Portions of these events were observed by a witness who resided in a second-floor apartment near the school; he called 9-1-1 and police soon arrived, where they found the three dead victims in the stairwell, as well as the seriously-wounded Natasha lying in a pool of blood in the playground.
Autopsies determined that Hightower died from a gunshot wound to the neck and "sharp-force" injuries to the face, head, and upper extremities. Terrance died from a gunshot wound to the neck, and Harvey died from a gunshot wound to the head.
I
In his first argument, defendant contends the trial judge erred in admitting into evidence photographs that depicted defendant, Alfaro and Baskerville gesturing hand signs denoting their relationship to the Mara Salvatrucha gang, commonly known as MS-13. We rejected a similar argument in affirming the conviction of one of the other defendants. See Godinez, supra, slip op. at 18-22.
The record reveals that, prior to trial, the State moved for admission of evidence — the photographs as well as Baskerville's testimony — in seeking to prove defendant's membership in the MS-13 gang, pursuant to N.J.R.E. 404(b). The judge granted the State's motion for reasons expressed in a very thorough and well-reasoned written opinion which properly applied the Cofield factors. The judge found that the test's first prong was met because the evidence was offered to enlighten the jury on defendant's motive, state of mind, preparation and plan, as a response to the anticipated defense theory that defendant was only a bystander. The judge also correctly ruled that the evidence, which tended to show defendant's membership in the MS-13 gang, was relevant to the conspiracy charges and other offenses as well, to the extent defendant's guilt could be based on accomplice liability principles. The judge found the second prong inapplicable — a circumstance that presented no impediment to admitting this evidence, State v. Williams, 190 N.J. 114, 131 (2007) — and the judge also found clear and convincing the evidence derived from Baskerville's testimony about defendant's gang membership, as well as the corroborating photographs, thereby satisfying the third prong. And, in his findings on the fourth prong, the judge stated:
In such instances, Cofield requires a determination that:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[127 N.J. at 338.]
If the State were solely permitted to use evidence that [d]efendant was a friend, classmate, [or] acquaintance of his co-defendants, this alternative evidence would have nowhere near the probative value that gang membership evidence carries. There are several groups of people who can be classified as friends, classmates, or acquaintances, but this makes it hardly more likely that these persons would conspire as a group to commit illegal acts such as robbery and murder, as would fellow gang members. Likewise, as to the substantive offenses with which [d]efendant has been charged, there is little else besides gang membership that could explain how [d]efendant, a youthful fifteen-year-old at the time of the offense, could have the motive and the requisite purposeful mental state to commit these substantive offenses or to aid and abet them. The bond of a friendship, a classmate, or an acquaintance offers no explanation and therefore sheds no probative light on how one could possibly
have possessed this egregious motive and state of mind. But the bond of gang membership clearly and most probatively [sic] explains why [d]efendant, a fifteen-year-old MS-13 gang member, would obediently follow the command of Godinez, an older allegedly high-ranking MS-13 gang member, to rob, kill, and maim four non-provoking strangers. The bond of gang membership explains why Gomez would go down the school yard stairs with three other MS-13 gang members — Godinez, Alfaro, and Jovel — while non-gang member Baskerville and unknown gang member Carranza remained upstairs amongst the one surviving victim. The bond of gang membership also explains why a gestured order from Godinez to Baskerville to slit the throat of [Natasha] went unheeded by Baskerville — an alleged non-gang member — as he shrugged his shoulders indicating "no" . . . . Mere friends or classmates have no necessary allegiance to commit such violent, illegal conduct. The hierarchical structure of gangs, in general, would explain such allegiance. In short, as the court found in [State v .] Goodman, [415 N.J. Super. 210, 230-31 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011)], there is no substitute for the gang membership evidence to explain the unfolding of the horrific events at the Mount Vernon schoolyard.The judge further amplified on these reflections during a hearing outside the presence of the jury, pursuant to N.J.R.E. 104(a), when, at trial, the photographs were authenticated. The judge again observed there was clear and convincing evidence of defendant's gang membership in light of Baskerville's testimony — which the judge found credible — that he had known defendant for many years. And, when Baskerville testified in the presence of the jury about defendant's gang membership and the meaning of the hand signs depicted in the photographs, the judge gave the jury a clear and thorough instruction limiting their use of this evidence in the manner required by N.J.R.E. 404(b).
After close examination of the record, we are abundantly satisfied that the judge applied correct legal principles in an appropriate manner, and that he did not abuse his discretion in admitting this evidence, which had a tendency to prove the absence of merit in the defense theory that defendant was only a bystander. In short, the evidence was relevant to a material issue in the case, State v. Calleia, 206 N.J. 274, 293-94 (2011), and its probative value was not substantially outweighed by a risk of undue prejudice, State v. Rose, 206 N.J. 141, 161 (2011). The judge did not abuse his discretion in this regard. State v. Torres, 183 N.J. 554, 567 (2005).
In Point I, defendant argues the judge misapplied N.J.R.E. 404(b) in admitting evidence regarding defendant's drug and alcohol use on the night in question. The judge properly applied Cofield in admitting this evidence. We find no abuse of discretion, and we observe the judge thoroughly instructed the jury on the limited use to which the jury could put this evidence. Defendant's argument on this particular point is of insufficient merit to warrant further discussion. R. 2:11-3(e)(2).
II
In Point II, defendant argues the judge erred in admitting evidence concerning the sexual assault on Natasha and in failing to give a proper limiting instruction. This argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
Natasha testified about the sexual assault, stating that one of her attackers digitally penetrated her. She could not, however, describe the appearances of her attackers. Immediately after this testimony, defense counsel objected and during the following sidebar, the prosecutor represented he had informed defense counsel prior to trial that he would elicit this testimony, to which defense counsel expressed no objection or concern. Defense counsel, however, claimed the prosecutor represented he would elicit testimony from Natasha that she was sexually assaulted by Baskerville and Carranza, and it was that to which the defense had no objection. Defense counsel objected not because the subject was introduced but because Natasha did not identify her attackers; the testimony became problematic for the defense because of the potential the jury might speculate that defendant participated in the sexual assault. To cure this potential misconception, defense counsel requested — and the judge gave — an instruction that advised the jury that "the State does not allege that defendant Gerardo Gomez committed any of these sexual — sexual conduct on [Natasha]. Indeed, he is not charged with any of that conduct." Immediately after that, the judge called for another sidebar conference during which he said:
I'm thinking that while I told them that the defendant is not charged with any of this, and the State does not allege that he did it, I'm of a mind to say that they just may consider this evidence as it may give meaning to other circumstances lest they now think, so then what are they hearing about it for. If you both don't want it, then I won't give it.After further discussion, defense counsel stated his preference to "leave it alone."
The jury was later instructed about the limited use of the sexual assault evidence after the jury heard evidence that Baskerville pleaded guilty to third-degree aggravated criminal sexual contact.
We reject the State's argument that defense counsel had agreed to the admission of this testimony; the agreement was based on an assumption that Natasha would identify her attackers. Nevertheless, we find no error in the admission of this testimony because the judge properly — and with defense counsel's consent — instructed the jury in a manner that avoided any prejudice to defendant or any speculation by the jury.
In his Point III, defendant argues he was denied the effective assistance of counsel because his trial attorney failed to object or otherwise agreed to the admission of testimony about the sexual assault. We have not considered the merit of this argument because it is better left to be considered upon the filing of a post-conviction relief petition. See State v. Preciose, 129 N.J. 451, 460 (1992).
III
Defendant contends the sentence was excessive and improper because of the judge's consideration of certain aggravating factors and because consecutive prison terms were imposed.
The judge applied five aggravated factors and two statutory mitigating factors, as well as one additional factor required by case law. After careful review, we are satisfied that the judge's observations about all these factors were rooted in the facts and grounded on proper and correct legal principles. In explaining his application of aggravating factor one, the judge stated:
Specifically, the judge considered aggravating factors one (the nature and circumstances of the offense and the actor's role therein, including whether it was committed in an especially heinous, cruel or depraved manner), two (the gravity and seriousness of the harm inflicted and whether the victim was particularly vulnerable or incapable of resistance), three (the risk that the defendant will commit another offense), five (a substantial likelihood that the defendant is involved in organized criminal activity), and nine (the need to deter the defendant and others). N.J.S.A. 2C:44-1(a)(1), (2), (3), (5), (9).
The judge found and applied mitigating factors seven (no history of prior delinquency or criminal activity) and thirteen (the conduct of a youthful offender was substantially influenced by another more mature person). N.J.S.A. 2C:44-1(b)(7), (13).
Miller v. Alabama, ___ U.S. ___, ___, 132 S. Ct. 2455, 2460, 183 L. Ed. 2d 407, 414-15 (2012) (holding that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments'"). Defendant has not referred to Miller in his brief and does not argue it precludes the aggregate sentence imposed here.
Here, the terror that was imposed during these crimes demonstrated cruel and depraved conduct; intent to cause pain, harm and suffering, which warrants a more severe punishment. The victims, who are trying to flee the scene of the attack, were brutally and cruelly threatened with a handgun and a machete. They were forced to the ground, repeatedly threatened and forced to surrender any valuables they might have in their possession. Terrance Aeriel, Dashon Harvey and Iofemi Hightower were marched down a stairwell, and Mr. Gomez was one of the people that went down that stairwell. Let us not forget. He wasn't left up there with Carranza and Baskerville; he went down into the killing pit. He went down. Marched down a stairwell, made to line up against a wall and shot in the heads.
There was no apparent motive or logical rationale for committing these atrocities, other than to recover whatever possessions they could from the victims, and perhaps to eliminate any potential witnesses. What was the reason? Gang status. The jury found that defendant actively participated in the
robbery, the murders, and [] the attempted murder. What happened in that schoolyard that night can only be described as evil incarnate. These crimes were committed in an especially heinous, cruel and depraved manner. This [c]ourt gives practically overwhelming weight to this factor due to its sheer monstrosity, or shall I say monstrousness.These observations more than amply supported the application of aggravating factor one and the assignment to it of great weight. See State v. O'Donnell, 117 N.J. 210, 217-18 (1989); State v. Rivers, 252 N.J. Super. 142, 153 (App. Div. 1991).
In applying aggravating factor two, the judge recognized that ordering the victims to lie face down rendered them particularly vulnerable and prevented their "ability to exercise normal physical resistance." See O'Donnell, supra, 117 N.J. at 219; State v. Gallagher, 286 N.J. Super. 1, 20-21 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996). The judge found a likelihood of re-offending not only because of defendant's nickname ("Knuckles") but also from the "sheer depravity" of these offenses and his lack of remorse, O'Donnell, supra, 117 N.J. at 216, even though defendant had no prior criminal record, State v. Thomas, 188 N.J. 137, 154 (2006); State v. Varona, 242 N.J. Super. 474, 491-92 (App. Div.), certif. denied, 122 N.J. 386 (1990). The gang evidence also permitted the judge to find applicable aggravating factor five. And application of the ninth aggravating factor was certainly warranted.
Defendant does not challenge the judge's finding or application of the mitigating factors, nor the manner in which they were weighed. --------
We find no error or abuse of discretion in the judge's consideration and application of any of these factors.
We also find no merit in defendant's argument that the judge abused his discretion in imposing consecutive terms for the three murder and one attempted murder convictions. The Supreme Court recognized in Yarbough, supra, 100 N.J. at 643-44, that "there can be no free crimes in a system for which the punishment shall fit the crime," and in such circumstances, a judge should consider, among other things, whether "the crimes involved separate acts of violence" and "multiple victims." These and the other Yarbough factors are to be applied "qualitatively, not quantitatively" and consecutive terms may be imposed "even though a majority of the Yarbough factors support concurrent sentences." State v. Carey, 168 N.J. 413, 425, 427-28 (2001). Indeed, a judge has the discretion to impose consecutive terms where "the only factor supporting consecutive sentencing is multiple victims." State v. Molina, 168 N.J. 436, 442 (2001); see also State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
The circumstances firmly supported the judge's decision to impose consecutive terms. And, although we recognize the real-time implications of this extraordinarily long aggregate sentence, we cannot say — in light of the fact that these despicable acts led to the utterly senseless and untimely demise of three young adults and the infliction of severe injuries to a fourth — that the sentence is shocking to the judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION