Opinion
DOCKET NO. A-1397-14T3
06-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. APOLLO H. CARDENAS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Glenn D. Kassman, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 97-05-0401. Joseph E. Krakora, Public Defender, attorney for appellant (Glenn D. Kassman, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Tried by a jury, defendant Apollo H. Cardenas was convicted of the first-degree murder of his wife, Youngsook Lee, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:11-3(a)(2), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). After denying defendant's motion for a new trial, the judge sentenced him to life imprisonment with a thirty-year period of parole ineligibility.
Defendant raises the following points on appeal:
POINT I
THE TRIAL COURT'S EXCLUSION OF THE PRE-HOMICIDE STATEMENTS DEFENDANT MADE TO HIS SISTER ABOUT HIS WIFE'S INFIDELITIES DENIED DEFENDANT A FAIR TRIAL (Partially Raised Below)
A. Even If Defendant's Statements About His Wife's Infidelities Were Not Admissible For Testimonial Completeness, They Nevertheless Should Have Been Admitted Because They Were Highly Relevant To Defendant's State Of Mind
B. Even If Defendant's Statements To His Sister Were Not Admissible Under N.J.R.E. 803(c)(3), The Court Should Nevertheless Have Admitted Them Because Failure To Do So Deprived Defendant Of The Opportunity To Present A Complete Defense
POINT II
THE TRIAL COURT'S ADMISSION OF TESTIMONY ABOUT LEE'S FEAR OF HER HUSBAND ALSO DENIED DEFENDANT A FAIR TRIAL
A. Testimony About The Victim's State Of Mind Was Irrelevant And Inadmissible
B. Even If Lee's State Of Mind Was A Relevant Issue In The Case, The Prejudice of The Proffered Evidence So Far Outweighed Its Probative Value That The Testimony Should Have Been Excluded
POINT IIIWe have considered these arguments in light of the record and applicable legal standards. We affirm.
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT'S REQUEST TO RETAIN PRIVATE COUNSEL PRIOR TO TRIAL
I.
Defendant and his wife lived in an apartment complex in Maple Shade. Eun Joo Gee, known as E.J., moved into the complex in 1995, befriended the victim and bonded with her over their common Korean heritage. In fall 1996, Lee gave E.J. a locked suitcase, indicating she and defendant planned to move out in November, and she would retrieve it then. When Lee had not claimed the suitcase by the end of that month, E.J. became concerned. Additionally, E.J. realized that the air conditioning in the couple's apartment continued to run despite the cold outdoor temperature. In January, with the air conditioning continuing to operate and no sign of Lee or defendant, E.J. asked the property manager, David Raynor, about the couple. Raynor realized the couple was two months behind in their rent.
On January 6, 1997, Raynor and the maintenance manager went to the apartment. After receiving no response to his knock or the bell, Raynor used his master key to unlock the door. A large pile of unopened mail lay behind the door, and Raynor immediately noticed a strong, foul stench. In the living room, he found a woman's body, bloody and blackened from decomposition, lying on a mattress on the floor; the ventilator fan and air conditioning unit were running. Raynor called police.
When they responded, police found no signs of forced entry, but there was chewing gum covering the front door peephole, dried blood on the bathroom floor and blood-stained towels in the bathtub. They also found a sheathed hatchet and store receipt dated November 15, 1996, in a Sears bag under the kitchen sink, and an axe in the living room closet stained with blood and matted hair.
Lee was employed as a waitress. The restaurant's owner testified that he last saw her late on the evening of November 27, 1996, when she finished her shift and defendant picked her up. Expert forensic testimony identified the body in the apartment as Lee's, and defendant was identified as a contributor to blood found on towels in the bathroom. At autopsy, the medical examiner identified a massive head wound and a deep wound to Lee's jugular vein. She opined that Lee died within minutes of receiving those wounds.
Police took a statement from defendant's sister, Nuria Chang, on January 7, 1997, in New York City. She reported that defendant visited her apartment on December 2, 1996. He was distraught and admitted killing Lee, explaining, "he thought that she was getting ready to leave." Chang said that defendant left her and visited his father, who arranged for defendant to leave the country using his brother's passport. Police determined that defendant boarded a flight the following day, December 3, 1996, from Kennedy Airport, through Miami, to Quito, Ecuador.
Although Chang testified before the jury, the prosecutor successfully moved for the admission of Chang's redacted, recorded statement as substantive evidence pursuant to State v. Gross, 121 N.J. 1 (1990), and the recording was played for the jury.
On January 8, 1997, police issued an arrest warrant for defendant charging him with Lee's murder and entered his name into the national criminal database. Two weeks later, with Chang's assistance, Prosecutor's Office Detective Frederick D'Ascentis had a brief telephone conference with defendant while he was in Ecuador. D'Ascentis urged defendant to return and speak to him about what happened to Lee. Defendant said he thought about returning, but wanted a week to think it over. Subsequent attempts to talk to defendant were unsuccessful.
Sixteen years later, on April 20, 2013, defendant flew into Miami at 4:45 a.m. from Quito, Ecuador. Officer Charles Carbot of the Department of Homeland Security met defendant planeside after discovering defendant's name and date of birth matched the outstanding homicide warrant. Defendant was placed in custody and extradited to New Jersey.
Defendant testified on his own behalf but otherwise called no witnesses. He claimed that Lee would fly into rages over insignificant things, and the couple frequently separated during the marriage only to reunite. On the night of the homicide, defendant picked up Lee from the restaurant and grew suspicious based upon her demeanor. Later, in the apartment, he concluded she was having an affair with one of the waiters and resolved to leave her. Defendant testified that sometime during the night, he was awakened when Lee called out the name "Kim" in her sleep.
Defendant rose from the bed to leave, waking Lee. She began to scream, so he grabbed the axe to intimidate her but admitted he lost control when she "started yelling louder and louder." Defendant explained:
I was so angry, so upset about everything and I just became like an animal afterwards and a hard rage came over me like [ ] never happened to me in my whole life and I lose control of myself. So I just lose control and so my first [intent] was to stop her and then something happened, something snapped and I just went, I went to hit her . . . I
didn't care anymore. I lost hope and everything, I wanted everything to end.
II.
In Point III, defendant argues that the judge mistakenly exercised his discretion by denying a request first made on the day of trial for an adjournment to retain new counsel. The issue arose in the following context.
On Thursday, April 24, 2014, the judge made rulings on a variety of pre-trial motions. Trial was set to commence on Tuesday, April 29, 2014, when defense counsel, an assistant public defender, indicated that based upon a conversation she had with defendant "a few moments ago," he no longer wanted to proceed with her services but rather "would like a private attorney." Defense counsel knew that "a jury pool [was] waiting," but she argued that defendant was "within his constitutional right to request the attorney of his choice." She requested an adjournment "so that [defendant] can get together the funds with his family and that he can hire that private attorney." The prosecutor objected to any adjournment, noting that in the many court appearances that took place since defendant's arrest, he never sought to retain counsel.
Defendant clarified that he was asking for a "pool lawyer," having requested nearly eight months earlier that a different public defender represent him. Defense counsel denied any knowledge of this request, and the judge stated that defendant had never raised the issue during any of his many prior court appearances. Defendant claimed his attorney was "not experienced in . . . these kind of cases," and implied that she and the prosecutor were too friendly toward each other.
The judge noted the court would not "get into reassigning cases amongst the public defender's office." He determined there was no "good faith basis for the request[,]" and refused to adjourn the trial.
After a brief recess, defense counsel advised the judge that defendant explained "his family is willing to pay for a private attorney." The prosecutor requested that the judge "not summarily deny th[e] request, but, instead, apply the factors we outlined in State v. Furguson, 198 N.J. Super. 395, 402 (App. Div.), certif. denied, 101 N.J. 266 (1985). The judge questioned defendant, who sought forty-five days to retain private counsel and advised that his family members in Florida were willing to pay, although he did not supply the name of counsel or the amount of funds his family could raise. The judge again denied the request, explaining:
[t]hese types of requests are not well favored on the day of trial. And I'm not going to grant it for the same reasons I indicated before. But I'd like to say in addition to that, that this case has already been delayed for a number of years because
of defendant's leaving the country. So there is already — this is [sixteen] years, some [sixteen] years after the alleged incident and the [c]ourt's not willing to delay the case for another [forty-five] days to allow [defendant] to retain private counsel when this has been before the [c]ourt for at least a year and a half and the issue has never been raised before today.
It would be an inconvenience to not only the [c]ourt, we have a number of jurors assembled that are ready to go and there are witnesses that the State will be bringing in from different parts of the country. And while tickets have not been purchased, they're being purchased I guess today or soon so that they can fly in. And, you know, quite frankly, the [c]ourt has to look at the victim and the victim's family in this case and the inconvenience to them to delay the trial further for the purposes of [defendant] hiring private counsel.
Moreover, this [c]ourt finds that the defendant has in some way contributed to this delay. He's entirely contributed to the [sixteen] year delay in this particular case and now he wants to extend it for [forty-five] additional days on the day of trial where he's never raised the issue before. So the delay would be that of [defendant]. And the [c]ourt finds that there will be no prejudice to [defendant] if the case were to proceed today. He's well represented by [counsel] who has up to this point been a vigorous advocate on his behalf. So the [c]ourt does not find that there would be any prejudice to [defendant].
The following day, defendant renewed his request for an adjournment to retain private counsel, contending defense counsel "d[idn't] have the murder trial experience." Defendant also presented a letter to the court stating, "I am dismissing my attorney citing ineffective counsel based on my experience and her admittance that she lacks trial experience and I adamantly refuse to proceed further at this time." The court denied the renewed application.
"[T]he Sixth Amendment 'entitles "a defendant who does not require appointed counsel to choose who will represent him[.]"'" State v. Kates, 216 N.J. 393, 395 (2014) (quoting State v. Kates, 426 N.J. Super. 32, 43 (App. Div. 2012)). That right is not "absolute" and must be balanced against "demands of the court's calendar, among other issues." Id. at 396 (citing Kates, supra, 432 N.J. Super. at 45). "A motion for an adjournment implicates a trial court's authority to control its own calendar and is reviewed under a deferential standard." State v. Miller, 216 N.J. 40, 65 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). "[T]o assess a defendant's request for a continuance to retain counsel of choice, trial courts should consider various factors outlined" in Furguson. Kates, supra, 216 N.J. at 396. "If a trial court conducts a reasoned, thoughtful analysis of the appropriate factors, it can exercise its authority to deny a request for an adjournment to obtain counsel of choice." Id. at 396-97.
Defendant contends that the trial judge "summarily" denied his request, focusing on the inconvenience to jurors, the victim's family and the State's witnesses and defendant's extended absence from the country, instead of the relevant Furguson factors. However, the judge was entitled to consider "'inconvenience to the litigants, witnesses, counsel, and the court,'" "'whether . . . defendant contributed to the circumstance[s]'" by not making the request until the day of trial, "'whether . . . defendant ha[d] other competent counsel prepared to try the case,'" which he did not, and "'whether denying the continuance w[ould] result in identifiable prejudice.'" Furguson, supra, 198 N.J. Super. at 402 (quoting United States v. Burton, 584 F.2d 485, 490-91 (D.C. Cir, 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979)). The judge concluded that defendant would suffer no prejudice by having his then-current competent, prepared counsel represent him, and defendant's request was not made "'for legitimate reasons.'" Ibid. (quoting Burton, supra, 584 F.2d at 590-91). In short, contrary to defendant's assertions, the judge did not "summarily" deny the request, and we find no mistaken exercise of the judge's discretion in denying the adjournment.
III.
In Points I and II, defendant challenges rulings made by the judge on evidentiary issues. "[W]e review those rulings to determine whether the trial court abused its discretion." State v. J.D., 211 N.J. 344, 354 (2012) (citing State v. Brown, 170 N.J. 138, 147 (2001); State v. Marrero, 148 N.J. 469, 483-84 (1997)). "A trial court's decision to grant or deny an evidentiary application will generally be upheld unless it is '"so wide of the mark"' as to result in a manifest injustice." Ibid. (quoting Brown, supra, 170 N.J. at 147).
A.
The State moved pre-trial to bar defendant's sister from testifying about statements defendant made to her at some undetermined date prior to the homicide. In those statements, defendant complained about the state of his marriage and his wife's infidelity. The prosecutor sought to exclude specific portions of Chang's recorded statement to police, arguing defendant's statements to his sister were self-serving, inadmissible hearsay. Defense counsel argued that defendant's statements were admissible to provide the "complete context" for the statements he made to Chang after the homicide.
The judge determined that the statements constituted hearsay, subject to no exception in the Rules of Evidence. He also rejected admission of the statements pursuant to the doctrine of completeness, see, e.g., N.J.R.E. 106, finding that the statements were remote in time and did not serve to explain defendant's subsequent admission that he killed Lee.
Defendant now argues for the first time that his statements to Chang were "highly relevant" to his state of mind and admissible pursuant to N.J.R.E. 803(c)(3). Alternatively, if not admissible under that exception to the hearsay rule, defendant claims the statements should have been admitted so he could present "a complete defense." We are not persuaded.
N.J.R.E. 803(c)(3) permits the admission of
[a] statement made in good faith of the declarant's then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain or bodily health), but not including a statement or memory of belief to prove the fact remembered or believed . . . .As the Court said,
t]he initial exercise of discretion in determining the admissibility of a state of mind hearsay statement under Evidence Rule 803(c)(3) is governed by a basic tenet of our evidence law: evidence, to be admissible, first must be relevant, that is, it must have "a tendency in reason to prove or disprove any fact of consequence to the determination of the action."The necessary predicate to admission of such evidence is that: a) the statement reflects a mental or physical condition of the declarant which constitutes a genuine issue in the case or b) the statement is otherwise relevant to prove or explain the declarant's conduct." State v. Downey, 206 N.J. Super. 382, 390 (App. Div. 1986).
[State v. McLaughlin, 205 N.J. 185, 205 (2011) (quoting N.J.R.E. 401).]
Assuming arguendo that defendant's complaints to his sister made at some undetermined time prior to the homicide about his wife's alleged infidelities and promiscuity were relevant to his "then existing state of mind," defendant's state of mind on those prior occasions was irrelevant, i.e., it was not "in issue." McLaughlin, supra, 205 N.J. at 206 (citing State v. Boratto, 154 N.J. Super. 386, 394 (App. Div. 1977), aff'd in part, rev'd in part, 80 N.J. 506 (1979)); see also State v. McGuire, 419 N.J. Super. 88, 137 (App. Div.), certif. denied, 208 N.J. 335 (2011) (decedent's statements made two months before the defendant-wife purchased a gun were not admissible pursuant to N.J.R.E. 803(c)(3)). Similarly, defendant's conduct, contemporaneous to when he made the statements, was irrelevant.
In the alternative, defendant essentially argues that statements about his wife's infidelity were relevant to explain his conduct on the night of the murder, and the exclusion of those statements denied him the right to present a full defense. Citing State v. Guido, 40 N.J. 191 (1963), he contends that his statements to his sister demonstrated a continuing course of marital abuse by his wife that culminated in the explosion of violence he admitted first to Chang and then on the witness stand.
In Guido, the defendant shot her husband after years of living under "constant threat" of physical abuse and enduring violent attacks. Id. 196. The Court determined that "a course of ill treatment which can induce a homicidal response in a person of ordinary firmness and which the accused reasonably believes is likely to continue, should permit a finding of provocation." Id. at 210-11.
However, in this case, there was no evidence of physical abuse, and the allegations of marital infidelity were made at some time in the undisclosed past. We doubt that defendant's statements to his sister were relevant to the issue of passion/provocation manslaughter, which was presented to the jury, along with manslaughter, as lesser-included offenses of murder. See, e.g., State v. Funderburg, ___ N.J. ___, ___ (2016) (slip op. at 15) (quoting State v. Crisantos, 102 N.J. 265, 274 (1986) ("The generally accepted rule is that words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter.").
Lastly, even if we are incorrect and the judge should have permitted the entire statement to be admitted, the error was harmless beyond a reasonable doubt. State v. Bass, 224 N.J. 285, 307 (2016). Defendant testified and detailed his wife's infidelity before the jury, a point emphasized in defense counsel's summation. In the end, the jury rejected defendant's version of events, and we have no doubt that admitting defendant's past statements to his sister would not have led to a different result. State v. Taffaro, 195 N.J. 442, 454 (2008).
B.
After defendant rested, the State recalled E.J. as a rebuttal witness. After some discussion about the limit of her testimony, E.J. testified that Lee left New Jersey in June 1996 to pursue an employment opportunity in Flushing, Queens. In fall 1996, Lee asked to stay with E.J. because she was scared of defendant, and she told E.J. that her passport was in the suitcase that she asked E.J. to store. There was no objection to the testimony at trial.
Although not noted in defendant's brief, the issue was "not raised below." --------
Defendant argues that the evidence was inadmissible, irrelevant hearsay. Alternatively, he contends that the evidence was substantially more prejudicial than probative and should have been excluded under N.J.R.E. 403.
The State contends that the evidence was proper rebuttal, to impeach defendant's trial testimony and to corroborate Chang's testimony that defendant told her right after the homicide that he feared his wife was leaving him. The State asserts the testimony was "admissible under multiple theories," specifically: 1) N.J.R.E. 607 — permitting introduction of extrinsic evidence to impeach defendant's credibility; and 2) N.J.R.E. 803(c)(3) — as evidence of the victim's state of mind.
N.J.R.E. 607 permits the introduction of extrinsic evidence to impeach a witness. The Rule does not, however, permit the introduction of otherwise inadmissible hearsay for that purpose, and none of the cases cited by the State stand for such a proposition.
As we already noted, under N.J.R.E. 803(c)(3), the declarant's state of mind must be, in the first instance, relevant. Generally speaking, expressions of fear by the victim of a homicide are admissible in rare circumstances, none of which apply here. See, e.g., State v. Benedetto, 120 N.J. 250, 255-61 (1990). However, our case law has permitted the admission of the victim's statements in limited circumstances for other reasons. For example, in State v. Thornton, 38 N.J. 380, 384-90 (1962), cert. den. 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963), the Court concluded that statements made by the decedent to a family member regarding her intention to visit defendant at his home were properly introduced by the State to negate defendant's claim of self-defense.
Here, defendant asserted at trial that he intended to leave his wife because of maltreatment and her infidelity on the night of the homicide, and flew into a "hard rage" when she awoke and began screaming. Without parsing the entirety of the brief rebuttal testimony, some of it was most likely admissible under N.J.R.E. 803(c)(3) because it reflected Lee's present state of mind during the weeks prior to her murder and clearly negated defendant's testimony. Moreover, we conclude that admission of the limited amount of testimony, even if improper as hearsay or pursuant to N.J.R.E. 403, was not plain error. Taffaro, supra, 195 N.J. at 454.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION