Opinion
DOCKET NO. A-3733-10T4
07-18-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FERNANDO CHIRENO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-09-1216.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).
Appellant filed pro se supplemental briefs. PER CURIAM
Defendant Fernando Chireno entered the apartment occupied by his estranged wife and their children after midnight on April 18, 2008. His entry was in violation of a domestic violence restraining order issued months before, and he was armed with a knife and an axe he had purchased at Home Depot on April 17. Defendant used the knife and axe to kill his wife during an assault that started in the apartment she shared with their children and ended in the street where she collapsed as she ran from defendant.
The grand jurors charged defendant with purposefully or knowingly causing his wife's death, N.J.S.A. 2C:11-3a(1)-(2), and with committing that murder by his own conduct, during the commission of a burglary and in violation of a domestic violence restraining order, N.J.S.A. 2C:11-3b(4)(g). In addition, the grand jurors charged defendant with third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d; fourth-degree contempt of a domestic violence restraining order, N.J.S.A. 2C:29-9b; second-degree burglary, N.J.S.A. 2C:18-2; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.
A count charging terroristic threats was dismissed before the case was submitted to the jurors, because the State declined to present evidence on that charge.
Defendant was tried to a jury in a bifurcated proceeding. The contempt charge and the factor aggravating a murder in the course of committing contempt of a restraining order were tried after the jury returned its verdict on the other charges and the other aggravating factor. The judge submitted lesser crimes included in murder to the jury — provocation manslaughter, reckless manslaughter and aggravated manslaughter. In addition, the judge instructed the jury on its obligation to consider evidence of defendant's mental condition in determining whether the State established the mental state required for proof of each crime charged, N.J.S.A. 2C:4-2, and instructed the jury on the defense of insanity. Nevertheless, the jury found defendant guilty of murder committed under both aggravating circumstances alleged by the grand jury and of the related crimes as well.
The judge merged defendant's convictions for burglary, contempt and the weapons offenses with his conviction for murder. The judge sentenced defendant to a life term of imprisonment without possibility of parole pursuant to N.J.S.A. 2C:11-3b(4)(g) and to a consecutive ten-year term of imprisonment for second-degree endangering.
The State's evidence was adequate to support the jury's verdict on each count. At about 2:00 a.m. on April 18, 2008, a neighbor of defendant's wife heard a woman screaming and saw her running in the street from defendant, who was striking the woman in the back, neck and legs with what the neighbor thought was a baseball bat. He struck his wife before she collapsed and fell to the street and again while she was on the ground. Then he fled.
The police who responded to the neighbor's 911 call found defendant's wife and the axe lying between two parked cars in a pool of blood. She was transported to the hospital and died there as a consequence of the fifteen sharp force injuries she sustained. Several of the contributing chop blows penetrated bone, and one transected her vertebral column, exposing and allowing bleeding into her spinal cord.
Defendant's wife was dressed in sleepwear and had no identification with her, but the police located her apartment by following a trail of clumps of hair that took them from the sidewalk to the open door of the wife's first-floor apartment in a multi-family dwelling. The police also found clumps of hair inside the apartment, where defendant commenced the attack.
The couple's three children were inside. The police found the youngest in a crib and the older two huddled together under a blanket.
After hearing about the attack, defendant's brother-in-law had taken a cab to his sister's home and, because he suspected defendant, he showed the cabby defendant's picture. Later, defendant hailed the same cab for a ride to a different part of town. The driver knew defendant and recognized him from the picture he had been shown. Accordingly, the driver took defendant to the crime scene while the investigating officers were still there. As the driver headed away from the place defendant wanted to go, defendant remarked that the driver was going to have him arrested.
Upon arriving at the site of the ongoing investigation, defendant got out of the cab and, in the presence of the police, said in Spanish, "I did it." Defendant was wearing pants and a sweater that were stained with blood, which was later determined to match his wife's DNA profile. As he was approached by members of his wife's family at the scene, he told an officer that they were going to kill him.
Defendant and his wife had been separated for more than a year when he entered her apartment and attacked her. In February 2008, she applied for and obtained a temporary order restraining defendant from coming to their apartment and having any contact with her or their children.
Although a final restraining order was issued later, evidence of that order was not introduced until the second stage of the bifurcated trial. The final restraining order was issued on March 4, 2008, and it was personally served on defendant by a sheriff's officer in court.
Defendant made indirect efforts to have his wife dismiss the restraints. Within days of the entry of the initial order, he went to her sister's home. Although his wife was there, defendant asked her sister to have his wife dismiss the restraints. When her sister said his wife would not do that, defendant said his wife would "pay for that."
Several days before he killed his wife, defendant again sought his sister-in-law's help. When she responded by telling him her sister did not want to be with him, he warned her that "[a]nyone could kill" her sister. On the day preceding his homicidal acts, April 17, 2008, defendant called his sister-in-law and asked where his family was.
The State produced evidence tending to prove that defendant planned the attack. During a search of his apartment, they located and seized packaging for a knife of the type found in the victim's apartment and a leather sheath for an axe of the same brand as the one found with her in the street. They also obtained a surveillance video from a Home Depot store that depicted defendant purchasing an axe and knife at about 9:00 p.m. on April 17, hours before the neighbor heard and saw the victim screaming and running from defendant.
A notepad that contained defendant's writings about killing his wife and his pleas to members of his family for their forgiveness was also found in his apartment. Defendant wrote:
Since last night I have been thinking of killing her. You know I think that I am
going to do it. I am going to give her seven stabs for being a disgrace. I don't know how it had not occurred to me before, I am going to call a taxi and I am going to Home Depot. I will buy a knife and I will kill her like a dog. I will cut her in pieces.
Defendant's sister-in-law gave the investigators additional evidence of defendant's intent and planning — a videotape of a conversation defendant and his wife had in the summer of 2007. The sister-in-law found the tape in defendant's wife's apartment about one week after she died. During the recorded conversation, which was played for the jury at trial, defendant's wife told him that if anything happened to her the tape would be proof that he was responsible. Defendant told his wife he would kill her by stabbing her in the neck or would cut off one of her fingers, and he spoke of burying her body parts in a yard or the woods.
In June 2009, more than a year after he killed his wife, defendant phoned his mother-in-law to ask for her forgiveness. He admitted to killing his wife because of his blinding jealousy and the trauma he experienced when his wife's cousin came to his job and told him about his wife's affair in the presence of his co-workers. In defendant's words, his wife's cousin "threw my pride to the ground" and "made me lose my mind." Defendant's mother-in-law recorded that conversation, and the recording was played for the jury.
In places in the record, defendant referred to his wife as "Millie" and he is referred to as "Ramon."
In addition to seeking forgiveness and offering explanations for his actions, defendant asked about his children, urged his mother-in-law to send pictures of them to his mother and told his mother-in-law whom she could contact to receive money he had to help her care for them.
The defense case focused on provocation and defendant's mental condition. As previously noted, the judge instructed the jury on provocation mitigating murder to manslaughter, the relevance of evidence of defendant's mental condition to the states of mind the State was required to prove and on the insanity defense. Defendant, a neighbor who lived in the same apartment building as defendant in the months preceding the homicide and the experts who testified on behalf of defendant and the State — respectively Drs. Robert Latimer and Daniel Greenfield — gave testimony relevant to provocation and defendant's mental condition. In addition, Dr. Latimer's testimony included information provided to him by defendant's mother, step-father and sister.
By defendant's account, he saw his wife having sex with her cousin in the presence of their child in April 2007 before they separated and another of his wife's cousins told him about his wife's infidelity in front of his co-workers. His neighbor testified that defendant confided in her and was upset by his wife's misconduct, and his wife's sister acknowledged that defendant had told her that he believed his wife was cheating on him at least ten times before he killed her.
The defense witnesses also discussed defendant's history of mental disturbances, which included auditory hallucinations, and his history of violent behavior as a child and teenager. He grew up in the Dominican Republic and first heard commands from God and "spirits" there. He explained that in response to those commands, he had stabbed his mother in her stomach, attacked his sister's boyfriend with a machete, ran naked in the street, cut himself and taken a machete to school. When he did those things, he thought that what he was doing was right.
Defendant's condition and behavior were addressed in a variety of ways in the Dominican Republic. He had been tied up in a shed in a backyard, medicated and hospitalized. Defendant moved to the United States in December 1999, and according to his testimony at trial he had never been in trouble here before this incident.
By defendant's account, the voices returned after he saw his wife having sex with her cousin in April 2007. The voices told him to kill her. God told him to buy the axe and use it to kill his wife, and he felt that he was controlled by Aisa and San Miguel when he killed her. On the evening before his early morning attack, he had prayed wearing a red scarf, drinking red wine and with lit red candles. He used red because he was "going to kill the bad spirit." A neighbor who saw defendant praying that night gave a similar description of what she saw, and she testified that, on a prior occasion, she had seen defendant praying while using a yellow scarf and yellow candles and drinking beer.
Defendant gave limited testimony about the attack. He said he had no key to his wife's apartment, but she opened the door when he called to her from the hallway outside the door to her apartment. When she saw him with the spirit in him, she started running. He warned her that "God told [him] to come [t]here to kill" her, and he started attacking her when she opened the door to the children's bedroom. Defendant explained that he believed "[y]ou must do what God tells you to do" and, for that reason, he knew he "never did anything wrong."
In Dr. Latimer's opinion, defendant has a schizophrenic disorder, paranoid type. His disorder was manifested by hallucinations, delusions, conjugal paranoia and grandiosity, and its symptoms included bizarre affect, disorganized and abnormal thinking and an abnormal ambivalence about his feelings for his wife. In Dr. Latimer's opinion, defendant killed his wife unwittingly because "he was doing what God told him" and did not appreciate that it was wrong. Pointing to the defendant's pre-attack writings in the notepad found in defendant's apartment and the fact that defendant attempted to take his own life after he killed his wife, Dr. Latimer concluded that defendant exemplified the rantings and ravings of a person in an acute psychotic state.
Although the State's expert, Dr. Greenfield, agreed that defendant suffered from a psychotic thought disorder, in his opinion defendant's symptoms were not acute or schizophrenic and he was malingering. He thought defendant's actions before and after the killing showed a deliberate plan inconsistent with an active psychosis and response to hallucinations and further demonstrated his understanding of the nature, quality and wrongfulness of his actions. In his opinion, defendant's homicidal actions were motivated by jealousy. Dr. Greenfield acknowledged, however, that if defendant genuinely believed that the voices he heard were directions from God then defendant would not have understood that his actions were wrong.
As previously noted, the jury determined that defendant purposely or knowingly killed his wife, by his own conduct and during the course of committing a burglary and contempt of a domestic violence restraining order. Thus, the jury rejected his claims of provocation, mental illness negating purpose or knowledge and the insanity defense.
On appeal, defendant's counsel raises one issue for our consideration:
I. THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT A CONTINUING COURSE OF ILL TREATMENT COULD PROVIDE THE BASIS FOR A VERDICT OF PASSION/PROVOCATION MANSLAUGHTER DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARAS. 1, 9, 10. (Not raised below).
Defendant has filed two briefs on his own behalf. In a brief defendant filed on October 24, 2012, he contends:
I. APPELLANT'S EVIDENCE OF LABORING UNDER DEFECT OF REASON, FROM DISEASE OF THE MIND, SO AS TO NOT KNOW THE NATURE AND QUALITY OF THE ACTS COMMITTED WHERE IN FACT FOUND BY SEVERAL MEDICAL "DIAGNOSIS" OF RECORD THAT MERITS NOW SUPPLEMENTATION OF RECORD TO AN INSANITY AND DIMINISHED CAPACITY DEFENSE (Not Raised Below).
II. APPELLANT CHALLENGES THE SENTENCE, AND AGGRAVATING FACTORS IMPOSED, CONVICTION MUST BE VACATED FOR LACK OF PROOF OF AGGRAVATING CIRCUMSTANCES (Not Raised Below).
Defendant filed a second pro se brief on October 8, 2013 raising two issues about a juror that did not deliberate:
I. RECORD ON APPEAL BE SUPPLEMENTED BY THE
TAKING OF ADDITIONAL EVIDENCE AND THE MAKING OF FINDINGS OF FACTS IN AN EXCEPTIONAL INSTANCE SINCE A MISTRIAL SHOULD HAVE BEEN ADJUDICATED (Not Raised Below).
II. WRIT OF ERROR TO ISSUE.
On December 18, 2013, defendant, with leave granted, filed a pro se reply brief that includes three points:
I. ALTHOUGH THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT A CONTINUING COURSE OF ILL TREATMENT COULD PROVIDE A VERDICT OF PASSION/PROVOCATION MANSLAUGHTER, APPELLANT HAS ALREADY SATISFIED THE ONUS PROVANDI BEFORE THIS COURT BY PROVIDING WITH HIS SUPPLEMENTAL BRIEF THE EVIDENCE THAT JUSTIFIES A REVERSAL FOR PERFORMANCE TO N.J.S.A. 2C:4-3b. (Not Raised Below).
II. THERE WAS NO ROBBERY CHARGES AND AS SUCH IMMATERIAL, THE STATE FAILED TO "PRODUCE" THE SERVED & SIGNED "TRO" AND FINAL RESTRAINING ORDER SHOWING THE SIGNATURE OF DEFENDANT. THERE WAS NO BURGLARY. THE STATE'S ANSWER HAS OPENED THE DOOR TO REPLY HOW THE STATE FAILED TO PROVE BEYOND REASONABLE DOUBT IT'S CASE SINCE THE "VERDICT SHEET" ON ALL COUNTS DOES NOT HAVE ANY OF THE LANGUAGE FROM THE JURY CHARGES GIVEN ON EACH RENDERING NO "FINDING" BY THE JURORS. THE CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE ON EACH COUNT AND A CLEAR MISCARRIAGE IN JUSTICE ab initio. (Not Raised Below) (Reply to the State's addressing Point I of Defendant's Supplemental Brief).
A. The Verdict Sheet misled the jury, as it did not reflect any jury charges given and was not placed on the record
nor marked as an exhibit during trial nor on Sentencing hearing.
III. THE TRIAL COURT FAILED TO OBTAIN THE "CONSENT" FROM THE DEFENDANT AS REQUIRED BY N.J.S.A. 2C:1-1c(2); AGGRAVATING FACTORS THREE, SIX AND NINE, ARE INAPPLICABLE TO THE DEFENDANT, HAVING NO NEXUS OF PRIOR CRIMINAL CONVICTION; SENTENCE IMPOSED IS AN EXCESSIVE SENTENCE BASED ON MISTAKE OF FACTS AND MISTAKE OF LAWS SINCE THIS WAS A GRAVES ACT CASE ab initio, AND AS SUCH ALL SENTENCES HAVE BEEN SATISFIED. (Not Raised Below) (In Reply to the State's, Point III).
A. No Consent was obtained.
B. Aggravating factors are inapplicable.
C. Sentence Imposed was based on Mistake of facts and Mistake of laws, Actual sentence eligibility was for a Graves Act, Conviction, and as such all sentences have expired.
After considering the arguments presented in light of the record, we have concluded that they have insufficient merit to warrant any discussion beyond the brief comments that follow. R. 2:11-3(e)(2).
Defendant did not ask the trial court to expand the model jury charge on provocation to include an instruction on the cumulative impact of a course of ill treatment his wife inflicted during the course of their marriage. Accordingly, this claim is subject to review for plain error, and defendant must demonstrate "'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)). We find no error here.
Although defense counsel recites no facts pertinent to provocation other than those we have set forth above, he relies on cases involving provocation in the form of ongoing abuse inflicted by the victim of the homicide over a course of time. See State v. Erazo, 126 N.J. 112 (1991); State v. Lamb, 71 N.J. 545 (1976); State v. Guido, 40 N.J. 191 (1963); State v. Vigilante, 257 N.J. Super. 296 (1992). Those cases have no relevance here. By obtaining and retaining a restraining order, defendant's wife effectively ended their relationship. Any continuation of the provocation defendant perceived in her rejection of their relationship was brought about by his own efforts to continue their relationship, not a course of conduct she continued between their separation and her death.
The common basis of the points defendant raises in his pro se submissions is a disagreement with the jury's resolution of the factual disputes about his mental condition, the essential elements of provocation and the factors aggravating murder. As noted at the outset of our discussion of the facts, the State's evidence was adequate to support the jury's verdicts on each count and on the factors aggravating murder that warranted imposition of a life sentence of imprisonment without possibility of parole. Thus, while defendant is not wrong in arguing that there was evidence that would have supported an acquittal based on insanity or arguably a less serious form of homicide, the jury was not required to, and obviously did not, credit the testimony favorable to the defense.
Defendant's objection to the verdict sheet is that it did not incorporate the instructions on the elements of the crimes and was not marked as a court exhibit. Rule 3:19-1, which addresses verdict sheets in criminal cases, does not require inclusion of the jury instructions. This argument was not raised at the time, and we see no basis for concluding that the omission of the jury instructions had any capacity to change the outcome of this trial. R. 2:10-2. But his arguments overlook the fact that the jury was free to credit and accept the State's version of the facts and the fact that the judge was compelled to sentence defendant to a term of life imprisonment without parole given the jury's determination that he committed the murder in violation of a restraining order and in the course of a burglary.
At trial, defense counsel raised an objection to the form of the verdict sheet on provocation manslaughter. That issue is not raised in any of the briefs filed on this appeal, and, for that reason, the claim is not before us.
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To the extent that defendant seeks to reopen the record to present additional evidence that his trial attorney either did not have or elected not to present, those claims, which are dependent upon matters outside the record, can only be raised by way of a petition for post-conviction relief.
Substantially for the reasons stated by the trial judge, we reject defendant's objection to the judge's ruling concerning the conduct of a juror who did not participate in deliberations.
Finally, we have considered the arguments defendant has offered to establish that his sentence is excessive and have determined that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). With respect to defendant's sentence for murder, the jury's verdict on the aggravating factors alleged by the grand jury required imposition of a life sentence of imprisonment without possibility of parole. With respect to defendant's sentence for endangering, the judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION