Opinion
DOCKET NO. A-0966-14T3
07-13-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RAMON PACHECO, a/k/a ROMAN PACHECO, a/k/a RAMON PACHECO-DELGADO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Samuel Feder, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the briefs). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, Guadagno and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 11-12-1380. Joseph E. Krakora, Public Defender, attorney for appellant (Samuel Feder, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the briefs). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Ramon Pacheco was found guilty of aggravated manslaughter and other offenses and sentenced to fifteen years of incarceration, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction entered by the trial court on September 23, 2014. For the reasons that follow, we affirm.
I.
A Morris County grand jury charged defendant with first-degree murder of Edwin Chavez, N.J.S.A. 2C:11-3(a)(1) and (2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Co-defendant Julian Mero was charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a). The trial court severed the charges against defendant and Mero. Defendant was tried before a jury.
At defendant's trial, testimony was presented indicating that on the evening of March 20, 2011, Chavez went to a nightclub in Dover with some relatives and friends. Defendant was in the nightclub with his wife. In the early morning hours of March 21, 2011, Chavez became involved in an altercation with the bar's security personnel and others, including Mero, the nightclub's bouncer. Mero threw Chavez out of the nightclub. The altercation continued outside and Chavez started to throw punches. According to defendant, one of Chavez's punches had been aimed at him. It grazed defendant's chin before landing on Mero. Mero retaliated and punched Chavez. Chavez fell to the ground. He was "knocked out."
Several witnesses said that defendant picked up a metal stanchion post used for divider ropes at the bar and struck Chavez two times. The post weighed approximately thirty pounds. One witness testified that the post struck Chavez twice on the chest "really hard." Another witness testified that defendant struck Chavez "more or less at the abdomen and chest area." Another testified that the post struck Chavez in the chest.
Chavez was unresponsive and bleeding from the head. Defendant fled the scene, and several persons attempted to help Chavez. An ambulance arrived, and paramedics performed cardiopulmonary resuscitation (CPR) on Chavez as they traveled to the hospital. A paramedic testified that while transporting Chavez, they did not observe any signs of a chest injury.
A physician examined Chavez when he arrived in the emergency room. The physician testified that when Chavez arrived, he had no pulse, was not breathing, was unconscious, and "was essentially dead." The doctor unsuccessfully performed CPR and attempted to restart Chavez's heart. She noted that Chavez had small lacerations on the top of his head and cheek, bruising on his shoulder, and scrapes on his knees. No chest injuries were observed at this point.
Although no abdominal injuries were observed either, at trial the doctor acknowledged apparent abdominal bruising in a photograph of Chavez's dead body. The doctor stated that the apparent bruising may have been the result of lividity, which is the pooling of blood in the body.
Dr. Ronald Suarez, the Morris County Medical Examiner, performed the post-mortem examination of Chavez. Dr. Suarez observed no abdominal injuries, but he did note lividity, back bruises, blunt trauma with a laceration to the head, and some facial bruises.
Dr. Suarez opined that Chavez's head injuries were consistent with having hit his head on the pavement, and could not have been fatal. He found multiple arc-shaped bruises over the victim's heart area. He testified that the unique shape of the bruises led him to conclude that they were made by an object with a curved edge or surface.
Dr. Suarez also observed "a fracture of the breastbone, [which] had moved quite a bit." When he opened Chavez's chest, Dr. Suarez noted internal hemorrhaging with a large amount of bleeding and air in front of the heart. Dr. Suarez testified that such hemorrhaging was consistent with the curve-like contusions. He said that Chavez's heart exhibited a severe laceration, "[a]lmost cutting the heart in half." In addition, Chavez exhibited a bruised left lung and a torn right lung. Dr. Suarez testified that the lung injuries were also consistent with the arc-like contusions, and that such injuries were fatal.
Dr. Suarez testified that Chavez's injuries were consistent with being struck multiple times with a metal post. He also testified that Chavez's injuries were inconsistent with a punch to the chest. He stated that he was an avid martial artist and had never seen a punch lead to such an injury.
Dr. Suarez further testified that Chavez's injuries were inconsistent with CPR compressions, or CPR compressions following a punch to the chest. According to Dr. Suarez, the severity of Chavez's injuries was more commonly seen in motor vehicle accidents or in victims who have been struck by trains. Dr. Suarez opined that the cause of Chavez's death was homicide by blunt force trauma to the chest.
Following the incident, police located and interviewed defendant. The officers read defendant his Miranda rights, which he waived in writing. Defendant told the officers that while he was at the nightclub for drinks, Chavez grabbed his wife's buttocks. Defendant said he did not approach Chavez at that time, but simply sat down. Defendant claimed that Chavez swung at him as Chavez was being escorted out of the nightclub, but the punch only grazed him and hit Mero.
Defendant stated that he saw Chavez run out of the bar, with Mero following. He said that Mero then "threw at least five punches" in uppercut fashion at Chavez. According to defendant, Mero landed "one good" punch. He claimed to have picked up the pole and struck Chavez not because he was angry that Chavez grabbed his wife, but because Chavez tried to punch him during the prior altercation.
The jury found defendant not guilty of murder, but guilty of the lesser-included offense of aggravated manslaughter. The jury also found defendant guilty of possession of a weapon for an unlawful purpose, and unlawful possession of a weapon. Defendant was sentenced on September 11, 2014.
The judge merged the weapons charges with the aggravated manslaughter charge, and sentenced defendant to fifteen years of incarceration, with an eighty-five percent period of parole ineligibility, pursuant to NERA. The judge also ordered five years of parole supervision, required defendant to submit a DNA sample, and imposed various fines and penalties. The judge entered a judgment of conviction dated September 23, 2014. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I
THE PROSECUTOR COMMITTED MISCONDUCT AND DENIED THE DEFENDANT HIS RIGHT TO A FAIR TRIAL WHEN HE ELICITED IRRELEVANT AND HIGHLY PREJUDICIAL HEARSAY THAT THE SEVERED CODEFENDANT WAS ONLY CHARGED WITH ASSAULT, NOT HOMICIDE (Not Raised Below).
POINT II
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE STATE'S FORENSIC PATHOLOGIST TESTIFIED BEYOND THE SCOPE OF HIS EXPERTISE AND RELIED ON HIS PERSONAL EXPERIENCE AS A MARTIAL ARTIST AS A BASIS FOR HIS CONCLUSION THAT A PUNCH TO THE VICTIM'S CHEST COULD NOT HAVE CAUSED HIS FATAL INJURIES (Not Raised Below).
POINT III
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED [DEFENDANT] A FAIR TRIAL (Not Raised Below).
Defendant also has filed a pro se supplemental brief in which he argues that
POINT I
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON ACCOMPLICE LIABILITY WITH RESPECT TO THE LESSER INCLUDED OFFENSES OF ASSAULT, AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER IRRESPECTIVE OF DEFENDANT'S ACQUITTAL OF MURDER VIOLATED DEFENDANT'S RIGHTS TO A FAIR TRIAL AND DUE PROCESS/EQUAL PROTECTION UNDER UNITED STATE'S CONSTITUTION AMENDS. VI AND XIV, N.J. CONST. ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW).
II.
We turn first to defendant's contention that the assistant prosecutor improperly elicited irrelevant and highly prejudicial testimony that co-defendant Mero had been charged with aggravated assault, not homicide, as a result of the altercation with Chavez. As noted, defendant did not raise this issue at trial. Therefore, we must consider whether the admission of the testimony was erroneous, and if so, whether the error was "clearly capable of producing an unjust result." R. 2:10-2.
A prosecutor's duty is not to obtain convictions, but rather "to see that justice is done." State v. Daniels, 182 N.J. 80, 96 (2004) (quoting State v. Smith, 167 N.J. 158, 177 (2001)). A prosecutor's improper conduct will not warrant reversal of a conviction unless the conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted).
In assessing whether a prosecutor's improper conduct denied a defendant of the right to a fair trial, a reviewing court considers, among other factors, whether defendant objected to the conduct, and whether the trial court addressed any impropriety by taking appropriate curative measures. Frost, supra, 158 N.J. at 83. Generally, if a defendant does not object to the claimed impropriety, the prosecutor's improper conduct "will not be deemed prejudicial." State v. Timmendequas, 161 N.J. 515, 576 (1999) (citation omitted). If there is no objection, it may be inferred that counsel did not believe the conduct was prejudicial. Ibid. (citation omitted).
Defendant contends that causation was the "core" of his defense. He asserts that there was reasonable doubt as to whether he caused Chavez's death by striking him with the metal stanchion, or whether Chavez's death was caused by Mero's punch to Chavez's chest, followed by CPR compressions. Defendant argues that by eliciting testimony that the State had only charged Mero with aggravated assault, the State "effectively informed" the jury that the State had resolved the question of whether he or Mero caused Chavez's death.
We are not persuaded by these arguments. The fact that defendant was charged with Chavez's murder indicated that the State was convinced that defendant caused Chavez's death. Moreover, the State presented evidence which indicated that defendant struck Chavez twice in the chest area with the metal stanchion, and no witness testified that Chavez was punched in the chest by Mero. Suarez testified that Chavez's injuries could not have been caused by a punch in the chest or by the CPR chest compressions.
Furthermore, there is no evidence that defendant was prejudiced by the testimony regarding the charges against Mero. The assistant prosecutor never argued that the jury was compelled to find defendant guilty merely because defendant had been charged with homicide, and Mero had not been charged with that offense. In addition, the jury was instructed that defendant was presumed innocent, and the State had the burden of proving all elements of the charged offenses beyond a reasonable doubt.
In support of his argument, defendant relies upon State v. Stefanelli, 78 N.J. 418 (1979). In Stefanelli, the defendant's co-conspirator testified at trial that he had entered a guilty plea after being charged with the same crime as the defendant. Id. at 425. The Court held the testimony regarding the co-conspirator's guilty plea was improper. Id. at 433-37. The Court stated that a co-conspirator's guilty plea is generally inadmissible because a defendant "is entitled to have the question of his guilt determined upon the evidence against him, not on whether a Government witness or co-defendant has [pled] guilty to the same charge." Id. at 430 (quoting Babb v. United States, 218 F. 2d 538, 542 (5th Cir. 1955) (citations omitted)).
Here, defendant and Mero were not charged as co-conspirators. Furthermore, Mero and defendant were not charged with the same offenses, and there was no evidence as to the disposition of the charges against Mero. Thus, the admission of testimony that Mero had only been charged with assault does not run afoul of the principle that a defendant should have the question of his guilt determined based upon the evidence against him, not a guilty plea of a co-defendant to the same charge.
In addition, the Court in Stefanelli determined that the admission of evidence regarding the co-defendant's guilty plea, although improper, was harmless error in view of the extensive evidence presented against the defendant. Id. at 436-37. Similarly, in this case, the State presented substantial evidence that defendant's actions caused Chavez's death. Thus, if the trial court erred by allowing testimony as to the charges against Mero, the error was harmless.
III.
Next, defendant argues that he was denied a fair trial because Dr. Suarez testified beyond the scope of his expertise and relied upon his personal experience as the basis for his opinion that Chavez's death could not have been caused by a punch to his chest. At trial, Dr. Suarez explained his opinion that Chavez's injuries were too severe to have been caused by a punch. Dr. Suarez testified:
The kind of injury that we see . . . requires a great deal of force. The kind of force that in my personal experience, you see most commonly in people involved in motor vehicle accidents. And again, rarely with this severity. And people getting hit by trains. I do martial arts. [I have] [b]een doing it for [forty] years. I've been kicked a lot in the chest and I've punched a lot of people in the chest. I've never done that to anybody.
Defendant's attorney did not object to this testimony. Therefore, we consider whether the court erred by permitting Dr. Suarez's testimony regarding his experience with martial arts, and if so, whether the error was one "clearly capable of producing an unjust result." R. 2:10-2.
Our rules of evidence provide that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." N.J.R.E. 702. There are three requirements for the admission of expert testimony. The subject matter of the testimony must be: "beyond the ken of the average juror," in a field where it is sufficiently reliable, and provided by a witness with sufficient expertise. State v. Jenewicz, 193 N.J. 440, 454 (2008).
Dr. Suarez's testimony that Chavez's fatal injuries could not have been caused by a punch was primarily based upon his extensive experience in forensic pathology. The medical examiner's comment regarding his personal experience in martial arts was merely to illustrate the sort of severe force that would have been required to cause the fatal injuries to Chavez's chest. As noted, Dr. Suarez also mentioned, by way of examples, injuries resulting from automobile accidents, and persons being struck by trains. Viewed in context, Dr. Suarez's remark regarding martial arts was not improper.
In support of his argument, defendant relies upon State v. Jamerson, 153 N.J. 318 (1998). In that case, the defendant was charged with two counts of reckless manslaughter, based on his operation of a motor vehicle under the influence of alcohol. Id. at 324. The defendant claimed that he had not driven recklessly, and that the victims' vehicle had entered the intersection without stopping at the stop sign. Id. at 324-27.
In Jamerson, the medical examiner testified regarding the severe injuries that the victims sustained. Id. at 327. However, the medical examiner also testified that, based on his own investigation of the crash, the deaths were homicides, the defendant had been driving recklessly, the defendant's recklessness caused the victims' deaths, and one witness had mistakenly said the victim-driver did not obey a stop sign. Id. at 339.
The Court held that the testimony was improper because the medical examiner was only qualified as an expert in forensic pathology, and his testimony should have been restricted to "the physical properties of the implement that caused the [victims'] deaths, narrating the physiological status of the bodies at the time of death, and ruling out the possibility that the injuries were self-inflicted or sustained as a result of mere inadvertence." Id. at 337 (citation omitted). The Court noted that the medical examiner had not been qualified as an expert in accident reconstruction, and his opinions regarding the manner in which the defendant and the victim had been driving were not proper lay opinion testimony. Id. at 339.
Defendant's reliance upon Jamerson is misplaced. Here, Dr. Suarez testified within the scope of his expertise in the field of forensic pathology. As noted, Dr. Suarez's reference to his personal experience in martial arts was merely an explanation for his opinion that Chavez's fatal injuries could not have been caused by a punch. Furthermore, Dr. Suarez never offered a direct opinion as to defendant's guilt.
Defendant also relies upon State v. Locascio, 425 N.J. Super. 474 (App. Div.), certif. denied, 212 N.J. 459 (2012). In Locascio, the defendant and her boyfriend were involved in a motor vehicle accident in which the defendant's boyfriend was killed. Id. at 477. The defendant was charged with vehicular manslaughter and a key issue was whether the defendant or her boyfriend had been driving the vehicle before the collision. Id. at 479-80.
At trial, the medical examiner testified about the autopsy he performed upon the boyfriend. Id. at 481. He also testified that the defendant had been the driver of the vehicle involved in the crash. Id. at 484-85. We held that the trial judge erred by allowing the medical examiner to testify that the defendant's boyfriend had been a passenger in the car. Id. at 493-95.
We held that the testimony went beyond "those permissible subjects within the domain of pathology." Id. at 492. Here, however, Dr. Suarez did not testify beyond the scope of his expertise. His comment regarding his personal experience in martial arts was relevant to "the domain of pathology."
IV.
In his counseled brief, defendant further argues that a new trial is required due to cumulative error. In addition, in his pro se supplemental brief, defendant argues that the trial judge erred by failing to charge the jury on accomplice liability. Neither argument is of sufficient merit to warrant extended comment. R. 2:11-3(e)(2). Defendant's claim of cumulative error fails because he has not identified any error that would warrant reversal of his conviction. Furthermore, the State did not proceed on a theory of accomplice liability, and there was no rational basis in the evidence for an accomplice charge.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).