Opinion
DOCKET NO. A-3315-08T3
01-27-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JONATHAN A. ZARATE, Defendant-Appellant.
Richard S. Mazawey, attorney for appellant. Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Matheu D. Nunn, Assistant Prosecutor, on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2011PER CURIAM
Decided January 27, 2012
Before Judges Parrillo, Alvarez and Skillman.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-12-01662.
Richard S. Mazawey, attorney for appellant.
Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Matheu D. Nunn, Assistant Prosecutor, on the brief).
Appellant filed a pro se supplemental brief.
Tried by a jury, defendant Jonathan Zarate was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count 1); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count 6); second-degree desecrating human remains, N.J.S.A. 2C:22-1(a)(1) (count 7); second-degree use of a juvenile to commit a crime, N.J.S.A. 2C:24-9(a)(3) (count 8); two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts 2 and 4), and two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts 3 and 5). He was sentenced to an aggregate term of life imprisonment plus twenty-four years and assessed appropriate fines and penalties. Defendant appeals. Save for the vacatur of the sentence on count four, which merges with count one, we affirm the judgment of conviction.
This criminal episode stems from the brutal murder and dismemberment of defendant's sixteen-year-old neighbor, Jennifer Parks. According to the State's proofs, defendant invited Jennifer to his father's home to watch television at around 1:30 a.m. on July 30, 2005. Both he and his younger brother had been acquainted with her for some time from school and the neighborhood. Jennifer had not been on good terms with defendant's brother, whom she accused of teasing her and who had been disciplined at school a couple of years prior based on those accusations.
After about an hour, defendant and Parks began arguing about defendant's brother. The argument escalated, and defendant began to punch and kick Parks in the face, and used a metal rod from the nearby sliding glass door to beat her. He then choked her, first with his forearm, and then with a bandana, which he stuffed down her throat. Once she lost consciousness, he went to the kitchen and fetched a knife, which he used to stab her several times around the mouth, throat, hip and abdomen.
Defendant used the knife again to remove Parks' legs at the knee to fit her torso into a trunk that he found in the garage. His first attempt at severing her legs was at the right thigh. The resulting hemorrhaging eventually led the medical examiner to conclude that she had still been alive when he made the aborted attempt. In the remaining early morning hours, he cleaned the murder scene with bleach, and placed the trunk in the back of his father's jeep along with plastic garbage bags containing Parks' severed legs. He did not attempt to dispose of either until the following day.
At approximately 3:00 a.m. on July 31, 2005, Officer Robert Ulrich of the Secaucus Police Department found defendant standing by the side of his jeep, stopped near the Union Avenue Bridge with its headlights off. Two other individuals — defendant's brother and a friend — both of them minors, were near the rear of the vehicle carrying the trunk. The two abruptly dropped the trunk and returned to the vehicle with defendant upon spotting Ulrich, but Ulrich approached with his gun drawn and instructed defendant, who had gotten into the driver's seat, to shut the vehicle off. Defendant complied.
Defendant attempted to persuade Ulrich that he was dumping garbage, but based on the odor coming from the vehicle, Ulrich suspected otherwise and requested backup. When additional officers arrived, he approached the trunk and noticed clothing, skin and dried blood, confirming his suspicion as to the trunk's contents. The medical examiner was called and opened the trunk to discover Parks' remains, her face covered with a bag. Her legs were found in the rear of the jeep.
An autopsy revealed blunt force injuries to Parks' face, stomach, and back and defensive wounds to her hands. She suffered puncture wounds to her neck and abdomen, as well as the cut to her thigh resulting from defendant's aborted amputation of her right leg at that location, while her heart was still circulating blood through her body. The medical examiner concluded that all of those injuries contributed to her death.
Defendant relied on a diminished-capacity defense at trial. His psychological expert, Dr. Diana Riccioli, diagnosed defendant as suffering from a psychotic disorder and polysubstance abuse, due to his history of marijuana, PCP, and alcohol use, and from an antisocial personality disorder. She explained that his condition rendered him prone to delusion and paranoia, and that he had killed Parks in the deluded belief that he was defending himself from an impending attack by her. She also stated he had an irrational belief that his actions would show his brother he cared for him. Riccioli based her assessment on information gleaned from interviews with defendant, his mother and step-father, and his father, as well as from medical records and his taped confession. However, she had not reviewed a psychologist's report prepared just a month before the homicide finding defendant in considerably better mental health, with no reports of substance abuse. Nonetheless, she testified that this report did not alter her opinion. The State's psychological expert, Dr. Daniel Greenfield, concurred with Riccioli that defendant suffered from a personality disorder but disagreed that it prevented him from acting purposefully or knowingly.
Evidently crediting the State's proofs, the jury convicted defendant of the murder and dismemberment of Parks and all related offenses charged.
On appeal, defendant, through counsel, raises the following issues:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A CHANGE OF VENUE, OR IN THE ALTERNATIVE, FOR A FOREIGN JURY POOL.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE INTRODUCTION INTO EVIDENCE ALL OF THE PREJUDICIAL PHOTOGRAPHS OF JENNIFER PARKS.
III. THE TRIAL COURT ERRED IN PERMITTING THE ALLEGED CONFESSIONS OF JONATHAN ZARATE TO BE USED AT THE TIME OF TRIAL FOLLOWING THE MIRANDA HEARING.
IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE THE TESTIMONY OF THE STATE'S FORENSIC DNA EXPERTS, MATT WOOD AND ELLIOT CLARK, AS THEY FAILED TO TESTIFY BASED ON A REASONABLE DEGREE OF MEDICAL CERTAINTY.
V. THE DEFENDANT WAS DENIED HIS SIXTH AMEND[MENT] RIGHT TO AN IMPARTIAL JURY MADE UP [OF] A FAIR CROSS-SECTION OF THE COMMUNITY.
VI. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO DISPLAY A KNIFE DURING THE TRIAL AND THE TRUNK THROUGHOUT THE TRIAL.
VII. IT WAS REVERSIBLE ERROR FOR THE COURT TO PERMIT THE STATE'S MEDICAL EXAMINER TO TESTIFY REGARDING THIS MURDER BASED ON BODY TEMPERATURE TAKEN BY A POLICE OFFICER/NON[-]EXPERT.
VIII. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
IX. THE SENTENCE IMPOSED UPON DEFENDANT WAS EXCESSIVE AND AN ABUSE OF DISCRETION AND MUST BE OVERTURNED.
X. THE SENTENCE MUST BE REVERSED BECAUSE THE HEARTLAND OF THE CASE DOES NOT CONFORM TO OTHER CASES IN THE NEW JERSEY SUPERIOR COURT PANALOPY OF
DECISIONS WHICH DIFFER FROM THE SENTENCING APPLIED.
In addition, defendant pro se raises the following arguments:
I. THE ADMISSION OF EXTREMELY DAMAGING, BLATANTLY INADMISSIBLE HEARSAY EVIDENCE TO BOLSTER THE STATE'S CASE, VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION AND THE HEARSAY PROHIBITION OF THE EVIDENCE RULES. (Partially Raised Below).We proceed to address those issues worthy of discussion.
II. THE PROSECUTOR'S REPEATED COMMENTS ON SILENCE WERE INAPPROPRIATE AND INFRINGED ON DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION UNDER THE FIFTH AMENDMENT AND STATE LAW. (Not Raised Below).
III. REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS SET FORTH IN THIS LETTER BRIEF, AS WELL AS THE ERRORS SET FORTH IN APPELLATE COUNSEL'S MERIT BRIEF AND OR ARGUMENTS ON DIRECT APPEAL.
I
Defendant argues that extensive, prejudicial pretrial publicity regarding his case necessitated either a change of venue or, in the alternative, trial by a foreign jury. Even aside from the publicity, defendant cites to the then recent anti-immigration rallies in nearby Morristown by the anti-Hispanic "Pro-America" movement in further support of his claim that a fair trial could not be had in the chosen venue. We disagree.
Criminal defendants have both a state and federal constitutional right to a fair trial by an impartial jury. State v. Loftin, 191 N.J. 172, 187 (2007). Where such a trial cannot otherwise be had in a particular venue, the rules authorize a trial court to order a change of venue or empanel a foreign jury. R. 3:14-2. A court's decision whether to grant either form of relief rests within its sound discretion. State v. Nelson, 173 N.J. 417, 476-77 (2002).
The inquiry pertinent to that decision is "whether an impartial jury could be obtained from among the citizens of the county or whether they are so aroused [by pretrial publicity] that they would not be qualified to sit as a jury to try the case." State v. Wise, 19 N.J. 59, 73 (1955). Prospective jurors need not be wholly ignorant of the case, and even "pervasive pretrial publicity does not necessarily preclude the likelihood of an impartial jury." State v. Koedatich, 112 N.J. 225, 268 (1988); see also State v. Biegenwald, 106 N.J. 13, 35 (1987). Nonetheless, where such publicity can prejudice a defendant's right to a fair trial, a court must discern whether a change in venue or empanelment of a foreign jury would be "'necessary to overcome the realistic likelihood of prejudice[,]'" Biegenwald, supra, 106 N.J. at 33 (quoting State v. Williams, 93 N.J. 39, 67 n.13 (1983)), or whether other alternatives, such as "the use of searching voir dire examinations" or a delay of the trial would suffice to eliminate that likelihood. Id. at 32; see also Williams, supra, 93 N.J. at 68.
The trial judge acknowledged the extent of the publicity surrounding the trial, but noted that defendant had presented no evidence of editorials urging a guilty verdict or any specific punishment; reported information that would be inadmissible at trial; inappropriate comments from the prosecution; or any prejudicial account of his prior criminal history. Nor did the extent of that publicity contribute to any carnival-like atmosphere around the proceedings, which had been and would continue to be held in an atmosphere of judicial calm, without any intrusion from the press. Moreover, the initial torrent of publicity had subsided long before the impending trial, which occurred years after the murder. With respect to the anti-immigration rally, the court observed that defendant had presented no information about it, including how many people attended or the circumstances of their attendance, and, in any event, defendant was not himself in this country illegally and so certainly not a target of any negative sentiment from the rally.
The court determined that, in all, the character of the reporting "only reflected the concern of the community as opposed to . . . hostility towards the defendant." It added that "an exhaustive voir dire, searching questions of prospective jurors could be used to weed out those who are potentially infected by pretrial publicity[,]" particularly one undertaken by the experienced counsel here. An additional safeguard would be "emphatic and clear instructions to the jury instructing them to decide issues solely on the evidence." The court concluded that, under those circumstances, defendant's right to a fair trial by an impartial jury, as well as the victim's family's right to attend the trial, could be scrupulously protected without the need for a change of venue or empanelment of a foreign jury.
The court's determination that a fair and impartial jury could be obtained from among the citizens of Morris County finds adequate support in the evidence and does not constitute an abuse of discretion.
II
Somewhat relatedly, defendant argues that he was denied his Sixth Amendment right to an impartial jury trial due to a relative lack of racial diversity in the county's jury pool. Again, we disagree.
The Sixth Amendment guarantees every criminal defendant "the right to be tried by an impartial jury drawn from sources reflecting a fair cross section of the community." Berghuis v. Smith, 559 U.S. _, _, 130 S. Ct. 1382, 1387, 176 L. Ed. 2d 249, 254 (2010). It thus ensures them "the benefit of the common-sense judgment of the community[,]" untainted by the "appearance of unfairness" that would surely arise from the exclusion of "large groups of individuals[,] not on the basis of their inability to serve as jurors, but on the basis of some immutable characteristic such as race, gender, or ethnic background." Lockhart v. McCree, 476 U.S. 162, 175, 106 S. Ct. 1758, 1766, 90 L. Ed. 2d 137, 149 (1986). A jury need not "mirror the community" or be "of any particular [racial or ethnic] composition" to satisfy that guarantee, but must be selected from a pool that does not "systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Taylor v. Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690, 703 (1975).
To demonstrate that a particular juror-pool selection method does not comply with that requirement, a defendant must show
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
rDuren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579, 586-87 (1979).]
Defendant argues that African-Americans and Hispanics have been systematically excluded from juror pools in Morris County because the county builds those pools from voter registration lists in which those two populations are consistently underrepresented. However, the New Jersey Supreme Court has already upheld precisely that method of selection as facially sound, State v. Coyle, 119 N.J. 194, 214 (1990) (citing State v. Ramseur, 106 N.J. 123, 224 (1987)), and defendant presents no evidence that it was constitutionally defective as applied here.
Defendant does present data pertaining to the racial composition of the juror pool at his own trial and of the county population as a whole, in an attempt to demonstrate a discrepancy between the two. However, defendant offers no statistical analysis of the significance of any such discrepancy that might satisfy the second prong of the standard. Nor does he introduce similar data of other juror pools that might prove, pursuant to the third prong, that any underrepresentation in the pool for his own trial was the product of systematic exclusion rather than just an anomaly. The voter-registration data he presents from a single election cycle does not cure that deficiency. Accordingly, defendant has failed to establish a prima facie case of the claimed Sixth Amendment violation.
III
Defendant argues that certain photographs of the deceased victim exhibited in conjunction with the medical examiner's testimony were so prejudicial as to warrant their exclusion. The numerous photographs depicted various areas of the victim's body where she had been beaten or stabbed, and the medical examiner referred to them in describing the extent of her injuries and explaining the cause of her death. Not all were ultimately admitted into evidence.
While "likely to cause some emotional stirring in any case," relevant crime-scene or autopsy photographs are admissible unless "their probative value is so significantly outweighed by their inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence." State v. Thompson, 59 N.J. 396, 421 (1971). Where that is so, a trial court may exclude them pursuant to N.J.R.E. 403. Its decision in that respect is a discretionary one. State v. Johnson, 120 N.J. 263, 297 (1990); Thompson, supra, 59 N.J. at 420.
Defendant contends that the photographs here had negligible probative value and were merely cumulative, because any fact to which they were relevant could have been adequately established through the medical examiner's testimony alone. Outweighing their marginal relevance is the inherent prejudice they presented due to their content and number, warranting their exclusion. In so arguing, defendant relies primarily on Johnson.
However, the photographs in Johnson were inadmissible not merely because they duplicated evidence already presented through testimony, but because they were not relevant to an otherwise unresolved issue. Johnson, supra, 120 N.J. at 298-99. There, the medical examiner had already testified to the cause of death and the extent of the assault, when the State introduced an entire day's testimony from a blood-spatter expert who testified to much the same effect while referring to numerous bloody crime-scene photographs and blood-spatter slides. Id. at 298. The Court observed that the expert's testimony, "although startling, prove[d] neither the intent nor the identity of the attacker[,]" and was instead "largely corroborative of other, essentially unchallenged testimony indicating the manner of death." Ibid. It therefore concluded that the photographs--along with their accompanying expert testimony--should have been excluded, because their potential for prejudice far outweighed their minimal probative value. Id. at 298-99.
The same result was obtained for precisely the same reason in State v. Lockett, 249 N.J. Super. 428, 432-33 (App. Div.), certif. denied, 127 N.J. 553 (1991), where gruesome photographs of the victim's corpse shed no light on whether defendant had committed first degree manslaughter, N.J.S.A. 2C:11-4a, or the lesser included offense of third degree death by auto, N.J.S.A. 2C:11-5. Likewise, in State v. Jordan, 197 N.J. Super. 489, 497-98, 504 (App. Div. 1984), the court stated it was error for autopsy photographs of the murder victim lying on his back, which did not even depict the fatal gunshot wound in the victim's back, to have been admitted into evidence.
Here, in sharp contrast, the photographs had legitimate probative value in connection with the medical examiner's testimony as to whether the victim remained alive when defendant stabbed her and, consequently, to the primary issue before the jury. While admittedly graphic and numerous, the photographs tended to establish that the victim died after defendant retrieved and used the knife, that he contemplated using that weapon was necessary to kill her, and, consequently, that he committed murder rather than manslaughter. They were also obviously relevant to the weapon-possession charge. Accordingly, we discern no abuse of discretion in their admission into evidence inasmuch as their substantial probative value was not so significantly outweighed by any potential for prejudice.
IV
Defendant contends that the court erred in permitting the State to display to the jury a knife and the trunk defendant used to conceal and carry the victim's body, because, pursuant to N.J.R.E. 403(a), their "probative value [wa]s substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury." Specifically, defendant argues as to the former that, because no blood was detected on the knife, its probative value was negligible and its potential for prejudicing and misleading the jury was magnified. We disagree.
No prejudice inheres in exhibiting a weapon simply because it may not have been the one actually used to commit the offense. See State v. Mayberry, 52 N.J. 413, 435-36 (1968) (finding no error or prejudice in the admission of a gun that resembled but was not in fact the murder weapon), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969). That is especially so here, where, as defendant himself emphasizes, the witness in conjunction with whose testimony the weapon was exhibited plainly informed the jury that he tested for but detected no blood on it. We discern nothing about that presentation that was misleading or unduly prejudicial.
As for the trunk, defendant argues that its very presence in the courtroom throughout the trial was unduly prejudicial because it kept the jury's focus on the manner of his attempted disposal of the victim's remains and distracted the jury from accurately evaluating his diminished capacity defense. However, nothing in the record illustrates the precise manner in which the trunk was displayed during trial except in conjunction with relevant testimony, much less indicates that its presence was so ominous during the defense's psychological expert's testimony as to have distracted the jury from a fair evaluation of that testimony. Therefore, the court did not abuse its discretion in failing to exclude either the knife or the trunk.
V
Defendant next argues that the court should have suppressed his confessions. He asserts that they were less than voluntary insofar as they resulted from his psychological difficulties, a narcotics addiction, and his youth, rather than an intelligent understanding and waiver of his right against self-incrimination.
The State bore the burden of proving beyond a reasonable doubt that defendant, advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), knowingly, voluntarily, and intelligently waived them. State v. Presha, 163 N.J. 304, 313 (2000). Generally,
[a] court must look at the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation. Relevant factors to be considered include the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved.A trial court's findings of fact in those respects are entitled to deference so long as they find the support of sufficient credible evidence in the record. State v. Elders, 192 N.J. 224, 243-44 (2007); see also State v. Locurto, 157 N.J. 463, 474 (1999).
[State v. Galloway, 133 N.J. 631, 654 (1993) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047-48, 36 L. Ed. 2d 854, 862 (1973); State v. Miller, 76 N.J. 392, 402 (1978)).]
The evidence presented in the course of two days of testimony at the N.J.R.E. 104(c) hearing is as follows. Upon his arrest, while still on the bridge, defendant was administered Miranda warnings first by Ulrich and then by Detective Michael Garner of the Rutherford Police Department. Defendant indicated to Garner that he understood his rights and volunteered that his two companions "ha[d] nothing to do with [this]." When asked, he admitted there was a body in the trunk. Garner described his demeanor as "pretty calm," noted that defendant was readily responsive, and observed no signs of any symptoms indicative of an individual under the influence of an illegal substance.
Defendant was transported to the Rutherford Police Department by 6:00 a.m. and seated in an eight-by-eight interview room. Sergeant John Haviland of the Bergen County Prosecutor's Office accompanied Garner into the room. Garner removed defendant's handcuffs and Haviland again administered him a Miranda warning using a standard form. Defendant responded orally and in writing that he understood each of the rights on the form and signed to indicate that he voluntarily waived those rights.
In response to Garner and Haviland's questioning, defendant explained that Parks' body was in the trunk, but that he had found her like that, an explanation Haviland found utterly implausible. In a short time, though, without any threats or promises made, defendant admitted to the homicide and provided details in a "calm" and "clear" manner. He was offered food and water and was given a twenty-minute break, during which he was left alone in the room. He consented to a buccal sample orally and in writing just after the break. Defendant refused to consent to a search of his residence, though, expressing concern for his family members who also lived there. This interview, which was not recorded, concluded at 7:41 a.m., and defendant was given a doughnut.
A stenographer was summoned and transcribed defendant's statement beginning at about 8:04 a.m. Defendant was placed under oath, acknowledged that he had been arrested for murder, and indicated again that he had been advised of, understood, and waived his rights. He repeated the information he had volunteered in the earlier interview. Garner observed that defendant remained calm, that he was not sweating, and that there was no alcohol on his breath. When asked specifically whether he was under the influence of any drug or alcohol during the incident, he responded in the negative.
Once the transcript was prepared, defendant twice reviewed it, made corrections on no fewer than eight pages, and approved it, initialing the first twenty-five pages and signing the last. Both reviews were videorecorded, though only the recording of the second turned out audible.
Garner denied telling defendant that confessing would help his brother or that defendant could gain any advantage by cooperating. Defendant was kept in a separate room from his brother and the other individual with whom he was arrested and had no interaction with them between his interrogation and statement.
Detective Jane Recktenwald of the Morris County Prosecutor's Office later arrived to transport defendant to Randolph. She administered another Miranda warning utilizing the same standard form, which defendant completed at 7:07 p.m. While in the rear of her vehicle, defendant willingly agreed to return to his residence to show her where he had disposed of the knife that he had used to stab the victim. Defendant showed no signs of intoxication.
Upon arrival at the Randolph Police Department, defendant was brought to the interview room, where he was again advised that he was under arrest for murder and, at his request, was provided with food. At approximately 10:00 p.m., he was again administered and waived his Miranda rights. During the ensuing interview, he stated that he was not currently under any medical treatment, taking any medication, or under the influence of any drugs or alcohol. Recktenwald found defendant to be alert and readily responsive. The interview concluded at 12:13 a.m. the following morning, and defendant indicated then that his statement had been true and accurate and that he had been made no threats or promises.
At the conclusion of the hearing, the court found that the State had demonstrated beyond a reasonable doubt that defendant had knowingly, intelligently, and voluntarily waived his constitutional rights. In so ruling, the court considered that defendant was young, only eighteen years old, and had no prior criminal history, but had attained his GED and did not appear naive. Moreover, although he was detained for a considerable time, he was given frequent breaks and food. More significant, the court found from its review of the videotapes that defendant did not suffer from mental exhaustion, that he was able to recall intricate details in chronological sequence, and that his recall was not "blurred, foggy, or impaired." Similarly, the court's review of defendant's signatures revealed no irregularity that would indicate a "fumbling hand or movement indicative of someone being affected by or under the influence of something."
Moreover, nothing in the record indicated that the atmosphere was threatening or coercive. On the contrary, the interview rooms were comfortable and defendant had repeatedly been advised of his constitutional rights before waiving them and participating in the interviews. Defendant never asked to cease the proceedings or contact an attorney. At all times, he remained polite and cooperative and never appeared to be under the influence of any substance. Indeed, the court found that defendant's refusal to consent to a search of his residence was reasonable and obviously belied any claim of a coercive environment.
We are satisfied that the court's decision to admit defendant's confession as the product of a knowing and voluntary waiver of Miranda rights is based on sufficient credible evidence, to which we defer.
Defendant further argues that the current court rules require that all custodial interrogations be electronically recorded in their entirety when the individual interrogated stands accused of murder, subject to certain exceptions undisputedly inapplicable here. R. 3:17(a). The rule had been recommended by the New Jersey Supreme Court Special Committee following its decision in State v. Cook, 179 N.J. 533, 562-63 (2004). The interrogations here were conducted after the rule was recommended in April 2005, but before it was made effective on January 1, 2006. Defendant acknowledges as much, but asserts that, because the Rutherford and Randolph Police Departments were already technologically equipped to record his entire interrogation, the recordings should have been made in compliance with the new rule. Whatever the merits of his argument as a matter of public policy, it remains that the rule was not yet effective and simply did not apply when he was interrogated.
The court concluded as much, but added that, even under the current rule, the failure to record a statement does not automatically preclude its admissibility, but is instead a factor for the trial court to consider in determining its admissibility. R. 3:17(d). The court then considered that, while defendant's entire interrogation had not been recorded, his statement and acknowledgement had been transcribed in full accordance with policies then applicable. It concluded that, under the circumstances, defendant's statement would be admissible regardless of whether the new rule applied. We are in full accord with this determination.
VI
Defendant contends that the court should have excluded expert testimony from Matt Wood and Elliot Clark identifying the victim's blood on certain evidence found in defendant's home. Although he does not challenge their qualifications as experts, defendant faults Wood for his failure to testify within a reasonable degree of scientific certainty and Clark insofar as his testimony relied on Wood's deficient opinion.
Wood, a forensic scientist employed by the New Jersey State Police, was qualified as an expert in biological stain analysis. He testified to his involvement in the preliminary testing of evidence for blood and bodily fluids, its remittance to the New Jersey State Police DNA laboratory for more thorough analysis, and identification of the source of any DNA recovered therefrom. However, he did not render his opinion that the substance found was blood within a reasonable degree of scientific certainty. Wood performed no DNA testing himself and offered no opinion with respect to it. Clark, on the other hand, a forensic DNA analyst employed by the State Police, performed such testing and testified to a reasonable degree of scientific certainty that blood recovered from several items, including a metal pole believed to have been used to beat the victim, a bandana used to choke her, and carpet from the defendant's basement, all belonged to the victim.
Generally, the rules 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. An expert's testimony is admissible, though, only insofar as his or her method of analysis has "'a sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of the truth.'" State v. Chun, 194 N.J. 54, 91 (quoting State v. Hurd, 86 N.J. 525, 536 (1981)), cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). Consistently, any opinion based on that analysis must be given within a reasonable degree of scientific certainty. State v. Fortin, 178 N.J. 540, 597 (2004).
As noted, Wood was never asked and so never specifically testified that his opinion was given within a reasonable degree of scientific certainty; but defendant cites no authority holding that such a deficiency is a fatal one. In any event, the crucial testimony here, which identified the blood from the items as actually belonging to the victim, was given by Clark, whose analysis did not rely on Wood's, except perhaps trivially, and who did testify to his conclusions within a reasonable degree of scientific certainty. Therefore, any error in the admission of Wood's challenged expert testimony was clearly harmless.
VII
Defendant also takes issue with the admission of other expert testimony, namely the medical examiner's opinion that the victim remained alive when defendant stabbed her. Defendant argues that this opinion relies on the expert's estimation of the time of her death, which in turn relied on a measurement of her body temperature taken by a lay police officer, who never testified.
An expert opinion is not inadmissible solely for its reliance on inadmissible data, so long as that data is of the sort reasonably relied on by experts in his or her field in forming such opinions. N.J.R.E. 703. Of course, expert testimony may not be abused as a "vehicle for the 'wholesale [introduction] of otherwise inadmissible evidence[,]'" State v. Farthing, 331 N.J. Super. 58, 79 (App. Div.) (quoting State v. Raso, 321 N.J. Super. 5, 16 (App. Div.), certif. denied, 161 N.J. 332 (1999)), certif. denied, 165 N.J. 530 (2000), but an expert may testify to such evidence, as necessary, "to apprise the jury" of facts on which his or her opinion relies, State v. Torres, 183 N.J. 554, 576 (2005). Such evidence is admissible solely for that purpose, though, and a limiting instruction to that effect may be required. State v. Vandeweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002), aff'd, 177 N.J. 229 (2003).
There was no error here. The medical examiner testified to the body-temperature measurement, as well as to its source, only in the course of apprising the jury of the basis of his opinions, and his testimony was admissible for that purpose. Torres, supra, 183 N.J. at 576. The court gave no specific limiting instruction, but carefully charged the jury as to the nature and use of expert testimony, and defense counsel thoroughly explored the reliability of the measurement and, consequently, the medical examiner's opinions on cross-examination.
Moreover, the officer's body-temperature measurement was a routine one performed, according to the medical examiner's testimony, by an appropriately trained individual. Granted, that individual was never duly qualified as an expert and the measurement itself was hearsay; however, the measurement was not mentioned at all until cross-examination, when it was directly elicited by defense counsel. Such invited error may justify reversal only where it "'go[es] so plainly to the integrity of the proceedings that . . . a new trial is the just course.'" State v. Harper, 128 N.J. Super. 270, 276-78 (App. Div.) (quoting State v. Macon, 57 N.J. 325, 338 (1971)), certif. denied, 65 N.J. 574 (1974). This is clearly not the case here.
Not only was any error invited, it was also plainly harmless. The medical examiner testified that the victim's body temperature had no bearing on his determination that certain of the victim's injuries, particularly the stab wound to her right thigh, had been inflicted ante mortem, the only determination from which defendant claims prejudice. The medical examiner opined within a reasonable degree of medical certainty that the victim's "heart was still pumping" and her blood "still in circulation" when her thigh was cut because of evidence of hemorrhaging, not because of her body temperature.
Thus, even if admission of certain of the medical examiner's testimony was error, defendant claims no prejudice that would justify reversal. In any event, there was no error insofar as the medical examiner merely apprised the jury of the factual basis for his conclusions.
VIII
Defendant argues that the admission of certain hearsay statements violated his Sixth Amendment right to confront witnesses against him. First, defendant challenges certain testimony by Officer Keith DeCarolis, who briefly spoke with defendant at his home during the day between the homicide and his arrest on the bridge, to the effect that friends of Parks had indicated to him that she was "indeed friendly with a Jonathan [who] lived in the neighborhood."
The statements from Parks' friends to which DeCarolis' testimony alludes are not hearsay. They were not introduced to "prove the truth of the matter asserted," N.J.R.E. 801(c), but only to explain why DeCarolis had occasion to speak with defendant. See State v. Bankston, 63 N.J. 263, 268-69 (1973). In any event, to the extent that there could have been any danger that the jury would consider those statements for their substantive truth, the fact that defendant and Parks were acquainted was neither disputed at trial nor incriminating such that its introduction could risk infringing defendant's constitutional right to confrontation.
Defendant next takes issue with Parks' mother's testimony that her daughter complained to her about defendant's brother, which then led to his discipline at school. However, when the prosecutor further inquired as to the nature of the complaints, defense counsel promptly objected, and Parks' mother never testified to their substance. She did, however, testify to her own response to them, in another exchange that defendant challenges:
Q: We're talking about now back in 2003, the seventh grade. Based on the information that your daughter told you that was going on at the school with
respect to what James Zarate was doing, what did you do?
A: I went to the school and I went to the board of education, and I asked them to either remove Jennifer or Mr. Zarate from the class so they would not be together.
Q: Do you know if you -- how many meetings did you have to have and were you ultimately successful?
A: I had to go at least three times before they did something. Yes.
Q: And what ultimately did they do?
A: They removed Jonathan -- excuse me, they removed James from her classes.
[(emphasis added).]
Parks' mother's testimony was not hearsay and did not endanger his right to confrontation. She never testified to the substance of her daughter's complaints, but only to their consequence--defendant's brother's discipline--which she personally observed. Even to the extent that she merely alluded to her daughter's complaints, that allusion cannot qualify as hearsay, because the truth of those complaints was irrelevant. Indeed, their consequence, to which she competently testified, tends to demonstrate a motive for the homicide whether or not they were true. In any event, none of the complaints directly incriminated defendant.
Defendant last challenges the prosecutor's comments during summation regarding the defense psychological expert Riccioli's evaluation of the credibility of the version of events that defendant had related to her, in light of statements from informants suggesting that he had fabricated it:
She had information from three people at the Passaic County Jail -- Roy Schmidt, Steven Shero and Tabani Mueller. Three separate people had come forward and written letters to former Prosecutor Rubbinaccio. You heard the testimony, it wasn't pursuant to any plea deals. And they said that they were encountering a person at the jail showing no remorse and they felt that they had to come forward and tell their story. And they ultimately gave statements that this individual was seeking an insanity defense, was asking the questions about insanity defenses some years after the incident, and they said he wasn't insane. So they decided to come forward.
Significantly, defendant does not independently challenge admission of the statements themselves in conjunction with Riccioli's cross-examination. But even to the extent that defendant's argument can be read to present such a challenge, the statements were admissible insofar as Riccioli weighed them in forming her opinion, Torres, supra, 183 N.J. at 576, and were brought up on cross-examination solely to impeach her credibility, N.J.R.E. 607, rather than for their substantive truth. The prosecutor even prefaced the comments that defendant now challenges with a warning that "the [j]udge is going to tell you how you're allowed to use this evidence. It's only to affect her credibility, okay." The court later appropriately instructed the jury as such, albeit without explicit reference to these particular statements.
Accordingly, none of the testimony defendant challenges constituted inadmissible hearsay or otherwise infringed his right to confrontation.
IX
Defendant contends that the prosecutor's comments about his silence infringed his federal and state constitutional right against self-incrimination. Specifically, defendant challenges the prosecutor's remark during his opening statement that the jury would "hear that the evidence w[ould] not show that [defendant] notified anybody, the police or anybody like that" following the murder.
Generally, a prosecutor may not "use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." State v. Muhammad, 182 N.J. 551, 569 (2005) (quoting State v. Deatore, 70 N.J. 100, 108 (1976)). Evidence of a defendant's pre-arrest silence is nonetheless admissible for impeachment purposes subject to an appropriate limiting instruction, but only "when the objective circumstances demonstrate that a reasonable person in defendant's position would have acted differently . . . ." State v. Brown, 190 N.J. 144, 158-59 (2007). Admission of a defendant's post-arrest silence, on the other hand, is strictly prohibited except under narrow circumstances inapplicable here. State v. Elkwisni, 190 N.J. 169, 177 (2007); see also Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91, 98 (1976).
However, where a defendant has validly declined to exercise his or her right to remain silent, that defendant is subject to impeachment even with his or her post-arrest statements. State v. Tucker, 190 N.J. 183, 189-90 (2007). Indeed, where appropriate, such statements may even be introduced against the defendant for their substantive truth. State v. Covell, 157 N.J. 554, 572 (1999).
While the prosecutor's passing mention of defendant's silence during his opening statement is troublesome, defendant never objected to it below. That failure permits an inference "'that in the context of the trial the error was actually of no moment.'" Nelson, supra, 173 N.J. at 471 (quoting Macon, supra, 57 N.J. at 333). Further, it deprived the court of a timely opportunity to take curative action. State v. Frost, 158 N.J. 76, 84 (1999). In any event, it was not so egregious as to constitute plain error. R. 2:10-2.
The remainder of the challenged comments and testimony emphasize not defendant's silence, but his actual responses to questioning--one well prior to his arrest and the others, as the court concluded after an appropriate N.J.R.E. 104 hearing, given knowingly and voluntarily after valid Miranda warnings. For instance, while examining DeCarolis about his investigatory visit to defendant's home following Parks' disappearance, the prosecutor inquired:
Q: What did you say to Jonathan Zarate?There was no impermissible reference to defendant's pre-arrest silence here.
A: I asked him if he knew Jennifer and, you know, if he did know her, when was the last time that he saw her.
Q: And what was his response?
A: He said that he did know her, he was friendly with her. If he saw her outside he would say hello to her. He said he hadn't seen her since the Thursday prior.
Q: What else did he say?
A: I don't recall.
[(emphasis added).]
Similarly, the prosecutor's continued questioning concerning defendant's behavior during DeCarolis' visit emphasized not defendant's failure to report, but rather his demeanor while lying to DeCarolis about not having seen Parks recently:
Q: How was the defendant behaving during your interaction with him at that time?
A: He was calm, polite. He didn't really show any signs of nervousness or anything.
Q: So you provided information to Jonathan that Jennifer Parks was missing, correct?
A: Correct.
Q: And did you ask him to do anything if he had seen her.
A: Yeah, we asked him to notify us if he had seen her.
Q: Okay. Did he understand that?
A: Yes.
During his summation, the prosecutor commented on that and other statements defendant had made to the police to challenge Riccioli's credibility on the grounds that she had failed to adequately consider those statements in forming her opinion. The prosecutor's comments in that respect plainly highlight defendant's mendacity rather than his silence:
Jonathan Zarate is a liar, okay. A liar. He lied to Officer DeCarolis when Officer DeCarolis went over there the next day and he was asking people in the community[,] ["H]ave you seen this child?["] Her parents reported her missing. They're agonizing, they don't know where she is. The police
department is going to bus stations and train stations, they're trying to find this girl so her family will know where she is. And he stands there and says[,] haven't seen her since Thursday.["]
That's a lie, okay. Dr. Riccioli didn't even know of the existence of the report. Didn't know about that. I had to present it to her. ["]Did you know that?["] ["]No.["] ["]Do you know he lied to Officer DeCarolis?["] ["]Yeah. Well you told me.["] ["]Would that change your opinion?["] ["]No.["] Okay.
The prosecutor later repeatedly reminded the jury, in comments that defendant also challenges, that Riccioli had not known when she evaluated defendant of the "lies" he had told to police officers. Again echoing his cross-examination of Riccioli, the prosecutor concluded his argument by addressing her belief in defendant's claim that he had abused narcotics recently prior to the homicide:
["]Well why, did you ask him why he told the police he wasn't under the influence of any drugs, why he said that under oath? Did you ask him that? Was that the follow[-]up question, because that kind of defeats what he just said to the police officers.["] ["]Oh, yeah, I did, I did.["] ["]And what did he say?["] ["]Oh, he said he didn't want to admit to using any drugs because he was afraid his mom would get angry.["]
And I said did you just tell this jury that Jonathan Zarate said to you that after he had just in vivid detail described how he had beaten down, kicked, hit with a pole and stabbed [Parks] repeatedly . . . and then
took two minutes to cut off each of her legs below the knee . . . , did you just say to this jury that the reason he didn't want to say that he used drugs was because his mother would get angry?
Here, the prosecutor's comments did no more than accurately reflect evidence revealed during the trial and reasonable inferences to be drawn therefrom, State v. Smith, 167 N.J. 158, 178 (2001), evidence that was clearly admissible to impeach Riccioli's testimony, N.J.R.E. 607. Moreover, the comments and testimony of which defendant now complains address defendant's mendacity rather than his silence and therefore resulted in no error, much less reversible error.
X
Defendant contends that his sentence is excessive. He was sentenced on the murder count to life imprisonment with parole ineligibility for eighty-five percent of that term pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a consecutive ten-year term for use of a juvenile to commit an offense, noting that he committed a separate offense on a date subsequent to the murder itself, and consecutive terms of nine years and five years for possession of the knife for an unlawful purpose and desecrating human remains, respectively. With respect to the latter, the court noted that the offense was a distinct evil that, beyond the murder, "deprived a grieving and heartbroken family . . . the opportunity to mourn their loss in a more dignified and appropriate fashion." Defendant received a concurrent term of four years on the count for hindering apprehension and the court merged the remaining counts, as appropriate, with either the murder or weapons counts.
Defendant essentially contends that the court should have found a mitigating factor based on his diminished capacity and should not have run any of the sentences consecutively, because all of the offenses for which he was convicted arose from a single act of homicide. We disagree, with one exception.
A trial court exercises considerable discretion in sentencing. State v. Dalziel, 182 N.J. 494, 500 (2005). Its decision will not be disturbed on appeal so long as it follows the applicable statutory guidelines and its findings are supported by sufficient credible evidence in the record. State v. Natale, 184 N.J. 458, 489 (2005). Otherwise, a sentence will be reversed only if it "shocks the judicial conscience." State v. O'Donnell, 117 N.J. 210, 215-16 (1989); see also State v. Roth, 95 N.J. 334, 365 (1984).
Here, the court found as an aggravating factor the nature of the offense, noting the depravity of the murder and defendant's efforts to dismember and conceal the victim's body. Notwithstanding an absence of any prior convictions, evidence in the record indicated defendant's involvement in three juvenile matters and "other inappropriate behavior prior to these offenses," as well as his "assaultive behavior" while he was incarcerated, and so the court found his risk of reoffense and the need for deterrence as additional applicable aggravating factors. It found no mitigating factors.
We are satisfied that the aggravating factors applied by the sentencing judge find considerable support in the record. With respect to the absence of mitigating factors, generally a court is not required to explicitly reject each mitigating factor argued by the defendant. State v. Bieniek, 200 N.J. 601, 609 (2010); see also State v. Pillot, 115 N.J. 558, 565-66 (1989). "It is sufficient that the trial court provides reasons for imposing its sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision." Bieniek, supra, 200 N.J. at 609. And although a court may consider a defendant's psychological difficulties in mitigation, even if they do not constitute a complete defense to the crime, State v. Nataluk, 316 N.J. Super. 336, 349 (App. Div. 1998), here, there was a reasonable basis for the court to conclude, founded on the State's psychological expert's testimony, that defendant had suffered no mental impairment to warrant mitigation of these offenses.
As for the court's decision whether to sentence consecutively or concurrently, its discretion must be guided by the principle that "'there can be no free crimes in a system for which the punishment shall fit the crime.'" State v. Carey, 168 N.J. 413, 422 (2001) (quoting State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986)). To that end, the court should consider the extent to which:
(a) the crimes and their objectives were predominantly independent of each other;A court must weigh these factors qualitatively and may impose consecutive sentences even if a majority of them support concurrent sentencing. Id. at 427-28. We are satisfied that the court's imposition of consecutive sentences for the discrete criminal actions of desecrating human remains and use of a juvenile to commit an offense are justified under the Yarbough guidelines and does not constitute an abuse of the sentencing court's broad discretion.
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous.
[Id. at 422-23 (quoting Yarbough, supra, 100 N.J. at 644).]
However, we are of the view that the consecutive term imposed on the possession of a knife for an unlawful purpose (count 4) must be vacated as that offense should merge with the most serious offense charged — murder. In this regard, while the court aptly noted that defendant's purpose in possessing the knife was broader than the murder, it did not find that it was broader than the collective offenses for which it otherwise sentenced him. Nothing in the court's findings indicate that defendant's use of the knife in the hindering apprehension offense was distinct from his use of the knife in desecrating the victim's remains, an offense for which he has already been consecutively sentenced. And although the court did attempt to distinguish the stabbing as a violent act separate from the murder, it remains that the stabbing caused the murder. Absent any broader purpose for the knife than its use in the commission of these collective crimes, we find that merger of the possessory weapon (knife) offense is appropriate. State v. Diaz, 144 N.J. 628, 639-41 (1996).
XI
We have considered each of the remaining issues in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The sentence imposed on the possession of a knife for an unlawful purpose (count 4) is vacated and the matter is remanded to amend the judgment of conviction to reflect the merger of the count 4 offense with the count 1 offense of murder. The judgment of conviction is affirmed in all other respects.