Opinion
DOCKET NO. A-1704-12T1
11-13-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULIAN MORALES, a/k/a BIENGENID GUETIERRE, a/k/a BENITO GUITERRES, a/k/a BEN GUITERRES, a/k/a BIENGENID GUTIERRES, a/k/a DAGOBERTO R. POZO, a/k/a BEN GUTIERRES, a/k/a JULIO HERNANDEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Angela K. Halverson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-01-0028. Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Angela K. Halverson, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. The opinion of the court was delivered by LEONE, J.A.D.
Defendant appeals his convictions for aggravated assault upon two victims and related weapons offenses. He claims statements made in the State's summation constituted prosecutorial misconduct, and that his sentence is excessive. We affirm, except we vacate and remand the Violent Crime Compensation Board (V.C.C.B.) fines.
I.
The following facts are drawn from the testimony at trial supporting the jury's verdicts.
Victim Hector Perez shared an apartment with the sister of victim Maria Segarra. Segarra lived in another apartment in the same building. Defendant had shared a room in the building with Segarra during 2007-2008.
Segarra's sister did not testify, because she died of unrelated causes prior to trial.
In the early hours of July 14, 2009, defendant committed aggravated assault upon Segarra and Perez with a box cutter. Segarra testified that defendant had come to the building, and she had found him in the hallway, holding a cell phone from her room, which he said he was going to sell to get money to purchase crack cocaine. Segarra testified that when she protested, defendant assaulted her with a box cutter, slashing her on the face, neck, arms, and hands.
Perez and Segarra testified that, after hearing the commotion, Perez came out of his room and tried to get defendant to stop. Defendant then cut Perez on his hand.
Segarra testified that she tried to retreat, but defendant followed her into another room and continued the assault. Segarra testified that she hit defendant with an empty bottle, but he cut her again. When Segarra's sister said she was calling the police, defendant left. At approximately 3:46 a.m., a police officer and an ambulance responded to the scene, and found Segarra's injuries were severe. While traveling in the ambulance to the hospital, Segarra told Officer Daniel Rivera that defendant was her assailant. Perez also identified defendant as the attacker.
As a result of the assault, Segarra lost one-third of her blood, was hospitalized for five days, and is permanently scarred.
At the jury trial, Segarra, Perez, Officer Rivera, two other officers, and two experts testified for the State. Defendant testified on his own behalf as follows. He was invited to the building by Segarra, and had sex with her and paid her $80 before the incident. As a result, Perez attacked and cut him and Segarra. Defendant ran from the apartment and met up with "Melissa." Defendant testified that, because he had been detained pretrial for two years, he could not call "Melissa" as a witness.
Regarding victim Segarra, the jury convicted defendant of second-degree aggravated assault causing or attempting to cause serious bodily injury, N.J.S.A. 2C:12-1(b)(1), and third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2). Regarding victim Perez, the jury acquitted defendant of second-degree aggravated assault causing or attempting to cause serious bodily injury, N.J.S.A. 2C:12-1(b)(1). The jury instead convicted him of the lesser, disorderly-person offense of simple assault, N.J.S.A. 2C:12-1(a)(1), and third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2). In addition, the jury convicted defendant of third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The jury also acquitted defendant of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; and second-degree burglary, N.J.S.A. 2C:18-2.
Defendant appeals his July 24, 2012 judgment of conviction. He raises the following arguments in his counseled brief:
POINT I: THE ASSISTANT PROSECUTOR'S SUMMATION TO THE JURY IMPROPERLY ASKED THE
JURORS TO FIND THAT DEFENDANT'S VERSION OF THE EVENTS IN QUESTION WAS NOT BELIEVABLE BECAUSE DEFENDANT "HAS SPENT NEARLY 25 OF THE PAST 30 YEARS INCARCERATED IN EITHER STATE OR FEDERAL PENITENTIARIES." WHILE A DEFENDANT'S CREDIBILITY MAY BE IMPEACHED WITH HIS PRIOR RECORD, THE AMOUNT OF TIME HE HAS ACTUALLY SPENT IN PRISON IS NOT A PROPER CONSIDERATION FOR THE JURY; MOREOVER, EVEN IF IT WERE, THE RECORD DOES NOT SUPPORT THE CLAIM OF THE STATE, AND THE PROSECUTOR'S ARGUMENT IMPROPERLY ASKED THE JURY TO CONSIDER DEFENDANT'S PRETRIAL DETENTION IN THIS CASE AGAINST HIS CREDIBILITY. (NOT RAISED BELOW)In a supplemental pro se brief, defendant also argues:
POINT II: THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
THE PROSECUTOR'S UNDULY PREJUDICIAL REMARKS CONSTITUTE REVERSIBLE ERROR.
II.
On appeal, for the first time, defendant challenges a comment in the prosecutor's summation about defendant's prior convictions. To understand defendant's claim, we first examine the evidence admitted at trial concerning defendant's prior convictions. Prior to defendant's testimony, the court held a Sands/Brunson hearing to determine the admissibility of some of defendant's prior convictions for the purpose of impeachment. The court denied defendant's application to exclude the prior record, but ordered that the prior convictions be sanitized. The prosecution agreed to limit the admissible evidence to the degree, date, and sentences of the offenses, and excluding those convictions that were too remote.
The Sands/Brunson test is explained as follows: The Sands/Brunson analysis requires a two-tiered approach. First, under Sands, a trial court must make the determination now codified in N.J.R.E. 609: whether "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." Once the trial court determines that a prior conviction is admissible under N.J.R.E. 609, the trial court must then determine whether it is presented with a "case[] in which a testifying defendant previously has been convicted of a crime that is the same or similar to the offense charged[.]" If so, the testifying defendant's prior conviction must be "sanitized," that is, "the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted."
[State v. Lykes, 192 N.J. 519, 523 n.2 (2007) (citing State v. Sands, 76 N.J. 127, 133 (1978) and State v. Brunson, 132 N.J. 377, 391 (1993)).]
As a result, the prosecutor was allowed to question defendant on cross-examination if he was a seven-time convicted felon, and to ask about his seven felony convictions in the last thirty years. Defendant answered that he was a four-time convicted felon. He admitted he had two state convictions in 1982, a federal conviction leading to a 104-month sentence in 1989, and three state felony convictions resulting in a 2003 sentence for nine years in prison with four years of parole ineligibility. The admission of the evidence of defendant's prior convictions and sentences is unchallenged on appeal.
Defendant stated that he did not remember a 1992 state felony conviction, for which he received a one-year suspended sentence.
As stated at the Brunson hearing, the concurrent sentence for these two convictions was four years in prison.
The prosecutor asked if defendant received another 2003 sentence for the third conviction of five years in prison with eighteen months of parole ineligibility, but defendant responded that his 2003 sentences totaled nine years.
In the prosecutor's summation, he addressed the issue of credibility:
So when we talk and evaluate this case, a lot of it does come down to credibility. [Defendant] is a seven-time convicted felon. Does that mean a seven-time convicted felon, under any circumstance, can't tell the truth. Absolutely not. Someone who is a felon, who can admit to doing bad things can be a victim as well. [Defendant] is not the victim here. Make no mistake about it. Let us be clear. He is not the victim. He has spent nearly twenty-five of the past thirty years incarcerated in either federal or state penitentiaries.
Defendant now asserts that: (1) this reference to his incarceration was outside the scope permitted by case law; (2) the argued length of incarceration was not supported by the record; and (3) the length of incarceration improperly incorporated defendant's testimony that he had been detained for two years prior to trial.
First, New Jersey case law permits reference to the length of a defendant's sentence in commenting on his credibility. "Historically, our courts have permitted a defendant to be cross-examined regarding sentencing information for prior convictions to impeach credibility." State v. Hicks, 283 N.J. Super. 301, 307 (App. Div. 1995), certif. denied, 143 N.J. 327 (1996); see, e.g., State v. Sinclair, 57 N.J. 56, 63 (1970); State v. Garvin, 44 N.J. 268, 280-81 (1965). A defendant may "be interrogated regarding the number of previous convictions and the duration of the sentences." Sinclair, supra, 57 N.J. at 63.
The length of "the sentence is descriptive of the severity of the misdeed." Garvin, supra, 44 N.J. at 281. "[T]he more serious the prior conviction, the more probative it is toward assessing a defendant's credibility, since one who seriously transgresses the rules of society is more likely to ignore the oath while on the witness stand." Hicks, supra, 283 N.J. Super. at 309. "The need to admit sentencing information is essential with the advent of sanitization." Ibid. "Without knowing the nature of a defendant's prior conviction, a jury would be unable to assign it appropriate weight in terms of severity unless it also was informed of the degree of the offense and the sentence imposed." Ibid. Thus, a prosecutor can refer in a summation argument about credibility to the length of the sentences imposed on the prior convictions admitted to impeach a defendant. Here, the prosecutor chose to refer to the sentences in total rather than by conviction, and directly used that total to discredit defendant's story that he was the victim. Without endorsing those choices, we note that "'[p]rosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented.'" State v. R.B., 183 N.J. 308, 332 (2005) (citation omitted). Moreover, the trial court twice instructed the jury that the evidence concerning defendant's prior convictions was admitted only to attack his credibility.
The principle that sentencing information may be admitted was recently incorporated into the language of N.J.R.E. 609(a)(2), which now makes explicit that the State may introduce evidence of "the degree of the crimes, the dates of the convictions, and the sentences imposed." Ibid. (eff. July 1, 2014).
Defendant cites various cases, but they are inapposite because they do not involve using prior sentences to show a testifying defendant's lack of credibility. Instead, the prosecutor in those cases used defendant's prior convictions simply to impugn the defendant.
See, e.g., State v. Pennington, 119 N.J. 547, 609-10 (1990) (reversing, in part, because the prosecutor called the defendant a professional criminal); State v. Johnson, 65 N.J. 388, 400 (1974) (reversing because the prosecutor said defendant had "been busy" with "assault and battery on police officers, robbery, possession of a stolen auto, receiving a stolen auto — about a half a dozen crimes he has been convicted of"); and State v. Driver, 38 N.J. 255, 291-93 (1962) (reversing because the prosecutor described defendant as "'a hardened criminal;'" and a "confirmed criminal"). --------
Defendant also argues that even if the length of the sentence imposed might be admissible for the limited purpose of impeachment, the length of time actually served is not. We do not resolve that issue, as it appears that the prosecutor was referring to the total years to which defendant was sentenced to prison, rather than the shorter period served. Indeed, the State concedes that "[i]f there was any error, it was in the use of the word 'spent' rather than 'sentenced.'"
Second, defendant argues there was no evidence in the record to support the prosecutor's argument that defendant spent "nearly twenty-five" years in prison. Defendant points out that during cross-examination he admitted to a 104-month (8.66-year) sentence, and a nine-year sentence, totaling 17.66 years in prison. As noted earlier, defendant also had received a four-year sentence and a one-year suspended sentence, and was asked about a five-year sentence, but did not testify to receiving those sentences. Thus, the evidence did not fully support the prosecutor's estimate. Prosecutors are "duty-bound to confine their comments to facts revealed during the trial and reasonable inferences to be drawn from that evidence." State v. Frost, 158 N.J. 76, 85 (1999).
Third, defendant notes that the prosecutor's estimate could have been understood to encompass the charges for which he was on trial. Of course, defendant himself testified to his pretrial detention. Defendant asserts that he offered his testimony only to explain why he failed to locate an alleged corroborating witness, and that the prosecutor was not entitled to use this statement to argue against defendant's credibility. However, the prosecutor did not specifically refer to this testimony or the two years of detention.
Assuming that the prosecutor's estimate and argument were flawed, we do not find that the prosecutor's brief comment, to which defendant did not object, warranted a new trial. Even when a defendant objects to a prosecutor's argument, "'to justify reversal, the prosecutor's conduct must have been "clearly and unmistakably improper," and so egregious as to deprive defendant of a fair trial.'" State v. Wakefield, 190 N.J. 397, 438 (2007) (citation omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). The prosecutor's comment is difficult to characterize as "egregious," particularly as defendant did not object to it. It is "'fair to infer from the failure to object below that in the context of the trial the error was actually of no moment.'" State v. Ingram, 196 N.J. 23, 42 (2008) (citation omitted). "The failure to object [also] suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 84.
Moreover, because he did not object at trial, he must show plain error to justify reversal. Plain error must be "clearly capable of producing an unjust result." R. 2:10-2. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). We must hew to this standard of review.
Here, we see no possibility that the prosecutor's mis-estimate led the jury to a different result. The court repeatedly charged the jury both that the attorneys' comments were not evidence, and that prior convictions were only to be considered for the purpose of determining credibility. Moreover, the prosecutor's comment did not inflame the jury to convict defendant on all charges. Rather, the jury carefully parsed the evidence, acquitting defendant of the serious charges of attempted murder and burglary, and convicting him not of second-degree aggravated assault against Perez but of disorderly-persons assault. The charges on which the jury convicted were supported by eyewitness evidence and the wounds to Segarra and Perez. Even if the prosecutor's comment was error, "we do not see in it so clear a capacity to bring about an unjust result as to warrant a claim of 'plain error.'" Garvin, supra, 44 N.J. at 281.
III.
In his pro se supplemental brief, defendant argues that the prosecutor in summation wrongly referred to the fact that Officer Rivera was a veteran. The prosecutor argued:
You heard a young man come in here . . . . Danny Rivera, grew up in this city, eleven years in the Army, soldier overseas, come in here and tell you that as [Segarra is] lying in the back of that ambulance, she's telling Danny Rivera, Julian Morales did this to me. Julian Morales did this to me, as she's lying in the back of that ambulance being rushed to a level-one trauma center.In fact, Officer Rivera testified to all of these facts on direct. Moreover, Rivera's experience as an army medic serving in combat situations overseas was relevant because it provided the foundation for his opinion on the extent of Segarra's severe blood loss. Thus, the prosecutor did not refer to facts not in evidence, and "did not ask the jury to speculate about matters extraneous to the relevant facts." See State v. McGuire, 419 N.J. Super. 88, 148 (App. Div.), certif. denied, 208 N.J. 335 (2011); cf. Frost, supra, 158 N.J. at 86 (the prosecutor "unfairly invite[d] the jury to speculate concerning whether the effect of an acquittal would be to terminate the officer's career"). Moreover, the defense did not object either to Rivera's testimony or to the prosecutor's reference to it in closing.
Defendant argues the prosecutor used the facts in evidence to bolster Officer Rivera's credibility. "[I]t is 'obviously improper' to imply that police testimony should be accepted, 'not because of its believability but because the witnesses were policemen.'" State v. Staples, 263 N.J. Super. 602, 606 (App. Div. 1993) (citation omitted). Here, the prosecutor did not explicitly make such an argument about former military personnel. Further, the prosecutor's quick reference to Rivera's military service was not "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. In any event, it was not plain error.
IV.
Defendant argues that the sentence imposed was manifestly excessive. "Appellate courts review sentencing determinations in accordance with a deferential standard. The reviewing court must not substitute its judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). We must affirm a sentence, absent the following exceptions:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
The trial court found defendant was eligible for an extended term because he qualified as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). After merging the other offenses, the court sentenced defendant to an extended term of seventeen years for the second-degree aggravated assault on Segarra, with 85% parole ineligibility, and a consecutive five years, with two-years parole ineligibility, for his conviction of third-degree aggravated assault on Perez.
We reject defendant's challenge to the extended term. A court may sentence a person who has been convicted of a crime of the second degree to an extended term where the defendant is a "persistent offender," that is, if he "has been previously convicted on at least two separate occasions." N.J.S.A. 2C:44- 3(a). Defendant conceded at sentencing that his prior convictions were sufficient to show he was a persistent offender.
On appeal, defendant contends that the court never found that imposing an extended term was necessary for the protection of the public under the "multi-step process" set forth in State v. Dunbar, 108 N.J. 80, 89 (1987). However, our Supreme Court has since found that "Dunbar's elucidation of a 'stepped' process to discretionary enhanced-term sentencing, with the addition of a finding about the need for 'protection of the public,' has produced a sentencing practice under N.J.S.A. 2C:44-3(a) that seemingly conflicts with Sixth Amendment principles." State v. Pierce, 188 N.J. 155, 166 (2006). In Pierce, our Supreme Court ruled that "Dunbar's reference to a finding of 'need to protect the public' is not a precondition to a defendant's eligibility for sentencing up to the top of the discretionary extended-term range." Id. at 170. Our Supreme Court also held that determining the sentence within that range "is a function of the court's assessment of the aggravating and mitigating factors." Id. at 168. "The court may consider the protection of the public . . . as part of the court's finding and weighing of aggravating factors and mitigating factors." Id. at 170. "[C]onsideration of the deterrent need to protect the public" is sufficient. Id. at 168; see also id. at 170 n.6.
Here, the trial court, citing Pierce, found defendant qualified for an extended term, and then separately made the assessment to determine the sentence within that range, as required by Pierce. The court was "clearly convinced" that mitigating factor four was "significantly and substantially" outweighed by aggravating factors one, two, three, six, and nine. The court found aggravating factor nine, which directly addresses "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(9). Moreover, the court expressly found that there was a "clear" risk defendant would commit another offense, and that there was "certainly a need to [] deter" defendant from acts like these. Therefore, we find no abuse of discretion. See Pierce, supra, 188 N.J. at 166.
Next, defendant argues that the court, in finding aggravating factors, improperly double-counted prior convictions used to justify his extended term. However, defendant had more than five other felony convictions, which were sufficient to justify finding a serious criminal record under N.J.S.A. 2C:44-1(a)(6) without double-counting. See State v. McDonald, 209 N.J. 549, 555 (2012); Dunbar, supra, 108 N.J. at 91-92.
Defendant claims the trial court double-counted Segarra's wounds in finding both aggravating factors one and two. Even assuming a double-counting analysis applies among the aggravating factors, which do not alter the sentencing range, we reject defendant's claim. Aggravating factor two is confined to "[t]he gravity and seriousness of harm inflicted on the victim," while aggravating factor one considers the entire "nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1), (2). Here, the court supported aggravating factor one by: finding that defendant's intent was "to mark this woman for life," and "to torture, to maim" her; citing "the length of the attack"; and noting that defendant only stopped his attack on Segarra when Perez pulled him off, and then he attacked Perez. Finally, the court specifically stated it was not "double counting" Segarra's serious bodily injury in finding those aggravating factors.
Defendant argues that the trial court failed to separately apply the aggravating factors to each of the two assault convictions, but points to no case law in support of such a requirement. Accordingly, we find this argument without merit sufficient to warrant further discussion. R. 2:11-3(e)(2).
Lastly, defendant argues that the trial court wrongly imposed a V.C.C.B. fine of $1000 without considering "defendant's ability to pay." N.J.S.A. 2C:43-3.1(a)(1). As the State notes, it is unclear what V.C.C.B. fine the court intended to impose. The court orally stated it was imposing a "$1,000" V.C.C.B. fine for the second-degree aggravated assault on Segarra, and a $50 V.C.C.B. fine for the third-degree aggravated assault on Perez. However, the judgment of conviction states the court imposed $50 for each of the counts. Moreover, a defendant "shall be assessed at least $100.00, but not to exceed $10,000.00 for each such crime [of violence]." N.J.S.A. 2C:43-3.1(a)(1); cf. N.J.S.A. 2C:43-3.1(a)(2)(a) (a defendant convicted of "any crime not resulting in the injury or death of any other person shall be assessed $50.00").
Accordingly, we will vacate the V.C.C.B. fines and remand solely for the court to have a hearing to determine what V.C.C.B. fine to impose on each count. At the hearing, the parties may renew the arguments made to us about whether defendant has the ability to pay a V.C.C.B. fine above the mandatory minimum. The court must impose at least the $100 mandatory minimum on each count. See State v. Malia, 287 N.J. Super. 198, 208 (App. Div. 1996) (a mandatory V.C.C.B. penalty "must be imposed regardless of defendant's ability to pay"). If the court imposes more than the $100 mandatory minimum on a count, it shall expressly consider "defendant's ability to pay and the economic impact of the assessment on the defendant's dependents," N.J.S.A. 2C:43-3.1(a)(1), and "set forth its reasons for imposing" it. State v. Gallagher, 286 N.J. Super. 1, 22-23 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996).
Affirm in part, vacated and remanded in part. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION