STATE OF NEW JERSEY v. ESTEBAN CANTERO

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3233-03T43233-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ESTEBAN CANTERO,

Defendant-Appellant.

_______________________________________

 

Submitted September 28, 2005 - Decided

Before Judges Fall, Parker and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment

No. 02-03-0526.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, of counsel and on

the brief).

Luis A. Valentin, Monmouth County

Prosecutor, attorney for respondent

(Mark P. Stalford, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Esteban Cantero appeals from a final judgment of conviction and sentence. The grand jurors for Monmouth County returned a six count indictment charging defendant with crimes against J.L., the daughter of defendant's paramour of thirteen years. Tried to a jury, defendant was convicted of murder, contrary to N.J.S.A. 2C:11-3a (count one); possessing a handgun with the purpose of using it unlawfully against J.L. contrary to N.J.S.A. 2C:39-4a (count two); aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(7) (count three); sexual assault contrary to N.J.S.A. 2C:14-2c(3) (count four); aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3a (count five); and criminal sexual contact, contrary to N.J.S.A. 2C:14-3b (count six).

The judge merged count two into count one, count four into count three and count six into count five. He sentenced defendant to a term of forty years, thirty without possibility of parole, for murder; a consecutive term of seventeen years for aggravated sexual assault; a term of four years, concurrent to the sentence for aggravated sexual assault, for aggravated criminal sexual contact. Following incarceration defendant must serve a term of community supervision for life, as required by N.J.S.A. 2C:43-6.4a. The judgment states defendant's registration obligations under N.J.S.A. 2C:7-2. See N.J.S.A. 2C:7-3. In addition, the judge imposed a VCCB assessment of $1100, a SNSF assessment of $225 and a LEOTEF penalty of $30.

Defendant met J.L.'s mother, A.M., in l983, when J.L. was about one year old. A.M. gave birth to a son in 1989, who is defendant's child. Although defendant and A.M. separated in 1997, defendant maintained contact with both children. The children often stayed with him in his Asbury Park home. According to A.M., defendant and J.L. were like father and daughter.

On February 21, 2001, defendant spoke with A.M. and mentioned that someone had tried to break into his home. On February 23, he came to her home to pick-up J.L. for a weekend visit. He declined to bring his son. Although A.M. later would recall that J.L. seemed slow in packing, she left with her step-father.

Just before one o'clock in the morning of February 24, defendant called a neighbor, Collazo, and told her someone had broken into his house and shot J.L. He asked her to call 911. Shortly thereafter, a neighbor returning home from work saw defendant outside, talking on the phone. As he approached defendant, he noted that defendant appeared to be scared and nervous. Defendant told him that someone had broken in and killed his daughter. The neighbor called 911. Defendant called A.M. and reported that a burglar had shot J.L. He also asked her to call 911.

When the police arrived, they found J.L. lying in bed, dressed in shorts and a T-shirt, head propped up on a pillow, with a gunshot wound to her forehead. Her leg was still moving. She was taken by ambulance to the hospital, where she died.

An autopsy was performed. The bullet that caused J.L.'s death was retrieved, and the autopsy revealed injuries to J.L.'s vagina and anus that were consistent with blunt force trauma. These injuries were in the early stages of healing. There were bloodstains on J.L.'s shirt and shorts. J.L.'s DNA and the DNA of another person was extracted from her clothing. Testing neither confirmed nor excluded defendant as the source of the unidentified DNA.

When J.L. was taken to the hospital, defendant was taken to the police station. A detective from the prosecutor's office came to the station to retrieve defendant's clothing and photograph him. He saw blood on defendant's right hand and bloodstains on his shirt.

At headquarters defendant gave four separate statements, all of which were proceeded by the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). In the first statement, defendant explained that J.L. was killed by a burglar, as he had in all of his prior accounts. Specifically, he said that he and J.L. heard a window break, and saw a black man with a silver gun who left the home after shooting J.L. while struggling with defendant. When the detective told defendant his account was not consistent with the crime scene, defendant admitted that he shot J.L. by accident and later threw the gun under the porch of his sister's home. He accompanied the officers to the porch, where they found the gun that defendant used to kill J.L.

In a statement given later that morning, defendant said he had purchased the firearm after an attempted burglary. He explained that he put the gun on his bed and forgot to put it away before J.L. came to visit him. When they were watching television, he shot her by accident while showing her the gun.

A warrant authorizing a search of defendant's home was obtained, and the officers found bullets and shell casings. They also found a video camera mounted on a tripod in defendant's bedroom and numerous video tapes.

An officer who viewed the hours of video tape retrieved from defendant's home described them as depicting J.L. at various stages of her life as she progressed through childhood to young adulthood. The camera had captured her dancing, modeling and sleeping. Some of the tapes showed defendant in bed with J.L. performing sexual acts. One of these videos included footage of J.L. in the bathroom of the home that A.M. vacated when J.L. was fourteen years old.

In a third interview with defendant, the detective told him about the videos the police had found. Defendant then admitted that he had taped J.L. while she was sleeping and while he was touching her "private parts." He also informed the detective that he had placed a camera in the bathroom and taped J.L. while she was naked.

In his fourth statement to the detective, defendant said he accidentally shot J.L. As he explained it, he was pointing the gun at J.L. from a distance of about three feet when his hands started to shake and the gun fired. Asked if he had forgotten to tell the officers about any sexual behavior between him and J.L., defendant responded, "About nine months ago, I forgot to add that I was rubbing my penis on her behind. She woke up suddenly and told me to stop."

While incarcerated pending trial, defendant told Jose Irizarry, his cellmate, that he had been sleeping with J.L. for a few years and videotaping her since she was fourteen. Defendant also told him that J.L had recently become very difficult and had told him that she was planning to tell her mother about their relationship. According to Irizarry, defendant said he had planned to kill J.L. and told the police other stories because he was afraid to tell the truth.

Defendant also spoke to Michael Hans, another of his cellmates. According to Hans, defendant explained that he killed J.L. because she threatened to tell her mother about their relationship when he did not give her things he had promised.

On the basis of the foregoing evidence, the jury convicted defendant of all charges. On appeal, defendant sets forth the following arguments:

I. THE TRIAL COURT ERRED IN DENYING

DEFENSE COUNSEL'S MOTION FOR A

SEVERANCE.

II. THE PROSECUTOR'S SUMMATION EXCEEDED THE

BOUNDS OF PROPRIETY. (NOT RAISED

BELOW)

III. THE 40 YEAR BASE TERM IMPOSED ON COUNT

I AND THE 17 YEAR TERM IMPOSED ON COUNT

III ARE UNCONSTITUTIONAL SINCE THEY

EXCEED THE MAXIMUM SENTENCE AUTHORIZED

BY THE JURY'S VERDICT.

IV. THE SENTENCE IMPOSED WAS MANIFESTLY

EXCESSIVE.

I.

The trial judge did not err in denying defendant's motion to sever the homicide and weapons offenses charges from the charges of sexual assault and criminal sexual conduct. Defendant's argument to the contrary lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only a brief explanation for our conclusion.

A motion to sever charges properly joined for trial is left to the sound discretion of the trial court and requires a showing that a unitary trial would result in prejudice.

R. 3:15-2b; State v. Oliver, 133 N.J. 141, 150 (1993); State v. Moore, 113 N.J. 239, 273 (1988). Two or more crimes that are based on acts or transactions that are connected may be charged in one indictment. R. 3:7-6. And, where proof of one crime would be admissible to establish the defendant's motive or intention to commit the other pursuant to N.J.R.E. 404(b), denial of severance is a proper exercise of discretion. State v. Morton, 155 N.J. 383, 451 (1998); State v. Chenique-Puey, 145 N.J. 334, 341 (1996). The rationale is that in such a case there simply is no prejudice attributable to the joinder of charges. State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div.), certif. denied, 94 N.J. 531 (1983).

In this case, the evidence of defendant's history of a sexual relationship with J.L. was relevant to establish his motive to kill her and his intention to take her life, and the evidence would have been admissible in a trial limited to the murder and weapons offense. See State v. Nance, 148 N.J. 376, 385 (1997); State v. Marrero, 148 N.J. 469, 485 (1997). Defendant himself linked the homicide and the sexual crimes when he told a cellmate about J.L.'s threats to tell her mother about their relationship. Defendant's claim that the sexual crimes were only tangentially related to the murder and the gun charge, ignores his statements explaining why this apparently devoted "father" shot his "child" in the forehead.

As Judge Kreizman recognized, "The information gleaned by the State from the crime scene, from the condition of the victim, [and the] statements of the defendant . . . all provide a clearer picture of how this event occurred." The judge's denial of defendant's motion was a sound exercise, not an abuse, of his discretion. Chenique-Puey, supra, 145 N.J. at 341.

II.

Defendant points to two portions of the prosecutor's summation that he contends so "sufficiently exceeded the bounds of propriety as to deny to defendant his right to a fair trial."

I strongly disagree with the defense. Mr. Irizarry is telling the truth. . . .

. . . .

. . . Make no mistake about it, before we go any further, do I trust Irizarry? No. Do I trust Michael Hans? No. Would they lie in a heartbeat? Would they get a deal from the State if they lied? No.

Did they want to come forward and help themselves? You bet. Is it going to help them to lie? No.

Defense counsel had presented a strong argument attacking the credibility of defendant's cellmates, Irizarry and Hann. He referred to Irizarry as a liar and invited the jury to speculate about his motives for presenting evidence favorable to the State. He argued:

We also know that [Irizarry] is awaiting trial on an armed robbery . . . . He is not going to tell you he was given any promises . . . . Rest assured . . . he is hoping if he says enough of the right things that the prosecutor wants to hear, that he is going to get some sort of favor.

With respect to Hans, defense counsel cautioned the jurors to be careful when considering his testimony, stressing that he had a pending motion for reconsideration and had agreed to testify on the promise that his case would be reviewed for a lesser sentence.

Defendant did not object to the prosecutor's argument at the time it was presented. His failure to object is significant to our review. He must establish plain error. R. 2:10-2; State v. Wilson, 57 N.J. 39, 51 (1970). "Moreover, defense counsel's failure to object to the remarks indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's comments were prejudicial." State v. Darrian, 255 N.J. Super. 435, 457-58 (App. Div.), certif. denied, 130 N.J. 13 (1992); Wilson, supra, 57 N.J. at 51.

The context of the prosecutor's argument is also significant to our review. For that reason, our courts consider whether an argument that approaches or crosses the boundary between vigorous advocacy and impropriety is made in response to an argument by defense counsel. See State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000) (holding that a prosecutor is not required to sit idly as a defense attorney attacks the credibility of the State's witnesses).

It is without doubt improper for a prosecutor to express a personal belief about the truthfulness of a witness's testimony or to vouch for the credibility of a State's witness. State v. Marshall, 123 N.J. 1, 156 (1991); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). This prosecutor's argument, read in isolation, carries an implicit suggestion that the State is in a position to determine whether defendant's cellmates testified truthfully during his trial. But when viewed in the context of the summations, the brief references are unlikely to have been considered as anything more than responsive to defense counsel's strong argument on the cellmates' reasons for testifying against defendant. The fact that defendant's attorney raised no objection at the time lends support to that reading.

Moreover, the court directed the jurors to avoid being influenced by the attorneys' perception of the evidence:

[Y]ou are the sole and exclusive judges of the evidence and of the credibility of the witnesses and the weight to be attached to their testimony . . . .

. . . .

And you are going to make some assessment of credibility as a unit. The arguments, statements, the remarks, the openings and the closing arguments of the attorneys are not evidence . . . .

We presume that the jurors heeded that instruction. See State v. Manley, 54 N.J. 259, 271 (1969). We see no basis for concluding that the prosecutor's improper argument was capable of depriving the defendant of a fair trial or leading the jurors to return a verdict that they otherwise would not have rendered.

III.

Defendant was sentenced and he filed his brief on this appeal prior to the Supreme Court's decisions in State v. Natale, 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005). Those decisions govern defendant's claim that his sentences for murder and aggravated sexual assault, which were based upon aggravating factors other than his criminal record, were imposed in violation of his constitutional right to a trial by jury. See U.S. v. Booker, ___ U.S. ___, 125 S. Ct. 738, 749 (2005); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); Apprendi v. N.J., 530 U.S. 466, 488-90, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435 (2000).

Under Abdullah, defendant's sentence for murder does not implicate the right to trial by jury because there are no presumptive terms for murder. Abdullah, supra, 184 N.J. at 507-08. Accordingly, we reject his constitutional challenge to that sentence.

In contrast, defendant's seventeen-year sentence for aggravated sexual assault is above the statutory presumptive term for that crime, which is no longer applicable. Natale, supra, 184 N.J. at 466. Because defendant's sentence is based upon aggravating factors other than his prior criminal record, we remand this "pipeline" case for reconsideration of his sentence for aggravated sexual assault in light of Natale. Natale, supra, 184 N.J. at 495-96; see State v. Young, 379 N.J. Super. 498 (App. Div. 2005).

IV.

Having rejected defendant's constitutional challenge to his sentence for murder, we review his claim that the forty-year term for murder is excessive and find it lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We do not regard the sentence as manifestly excessive and are satisfied that the trial court properly applied the standards and guidelines of the Code and based the sentence on aggravating and mitigating factors that are supported by the record and clearly explained. See State v. Hodge, 95 N.J. 369, 376 (1984); State v. Roth, 95 N.J. 334, 363 (1984); State v. Johnson, 203 N.J. Super. 127, 137 (App. Div.), certif. denied, 102 N.J. 312 (1985). The trial judge's decision to impose consecutive sentences for the crimes of aggravated sexual assault and murder is similarly supported by the record and consistent with controlling legal principles. N.J.S.A. 2C:44-5a; State v. Yarbough, 100 N.J. 627, 643-45 (1985), certif. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

 
Affirmed in part and remanded for resentencing on defendant's conviction for aggravated sexual assault as required by Natale.

(continued)

(continued)

14

A-3233-03T4

November 10, 2005

 


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