STATE OF NEW JERSEY v. ELIGIO BUENO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1354-04T41394-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELIGIO BUENO,

Defendant-Appellant.

____________________________________________________________

 

Submitted March 22, 2006 - Decided June 1, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Ind. No.

03-04-0537.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Linda Mehling, Assistant Deputy

Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor,

attorney for respondent (Simon Louis Rosenbach,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

In a four-count indictment, defendant Eligio Bueno was charged with murder, N.J.S.A. 2C:11-3(a)(1)(2) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree receiving a stolen automobile, N.J.S.A. 2C:20-7 (count three); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count four). Prior to trial, count three was severed. A jury found defendant guilty of counts one, two, and four. At sentencing, the court merged count two with the murder conviction and imposed a fifty-five year state prison term, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. And defendant received a consecutive one-year term on count four. All mandatory penalties and assessments were also imposed.

On appeal, defendant makes the following arguments:

POINT I

THE PROSECUTOR'S CROSS-EXAMINATION OF ELIGIO BUENO, WHICH FOCUSED ON BUENO'S FAILURE TO TELL THE POLICE THAT HE HAD WITNESSED THE SHOOTING OR PROVIDE THE POLICE WITH A DESCRIPTION OF THE SHOOTER, VIOLATED BUENO'S RIGHT TO REMAIN SILENT AND DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below.)

POINT II

THE PROSECUTOR ENGAGED IN MISCONDUCT BY REPEATEDLY CASTIGATING BUENO FOR HIS PURPORTED COWARDICE, THEREBY DEPRIVING BUENO OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (Not Raised Below.)

POINT III

IN ACCORDANCE WITH BLAKELY V. WASHINGTON, IMPOSITION OF A 55-YEAR TERM ON THE MURDER CONVICTION VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY, PROOF BEYOND A REASONABLE DOUBT, DUE PROCESS OF LAW, AND RIGHT TO INDICTMENT AND MUST BE VACATED.

POINT IV

THE SENTENCE OF 55 YEARS IS GROSSLY EXCESSIVE.

Our review of the record leads us to conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). But a few comments are in order.

At approximately 3:30 a.m. on Saturday, June 29, 2002, Rashiem "Rock" Reed was shot in the head as he stood on the street in front of 76 Union Street in Carteret. He was taken to Rahway Hospital, where he died shortly thereafter. Earlier that morning, Reed had been at Charlie's Pub with his friend, Javier Gonzalez, playing pool when defendant arrived at the same location. Reed was friends with both Gonzalez and defendant.

Reed and defendant played pool, drank some beer, and talked until the bar closed at 3:00 a.m. After the bar closed, Reed, Gonzalez, and defendant went to Gonzalez's house to "have a few drinks and . . . hang out in front of [the] house." After arriving at Gonzalez's house, they were joined by another friend, Christian Davis, who was walking home from a different bar. At the trial, Davis testified that "people were just talking" for a few minutes and then defendant said he was leaving. Davis described what happened next as follows:

Q. And so Bueno got up and said he was leaving. Then what happens?

A. Well, he shook people['s] hands and then Rock asked him [do] you know where the shortcut [is] at. He said no, show me, something like that, and they walked off.

Q. Did one of them walk off first?

A. They walked together.

Q. Where did they walk to?

A. The front of the next house.

. . . .

Q. How do you know they walked off?

A. I seen them walk off but I wasn't like really paying attention to them.

Q. But you did see them walk off.

A. Yes.

Q. Did there come a time when they stopped?

A. Yes.

Q. Did you see what happened then?

A. They were talking. Me and Javier was talking.

Q. Tell us what happens now.

A. A shot went off.

Q. When the shot went off where were you looking?

A. I was facing towards Javier.

Q. When the shot went off what did you do?

A. Reaction. I looked to my left. I seen Rock falling.

Q. What else did you see?

A. I seen Bueno turning away like jogging like. Then he glanced back at us like he was tucking something in his waist and kept going.

Q. Did you see what he was tucking in his waist?

A. No.

. . . .

Q. Did you see Bueno's face after the shot went off?

A. After the shot, yes. He glanced back and looked at us I guess like to see if we was going to do something, or something.

Q. Was there anyone in the area besides yourself, Javier, Rock and Bueno when the shot went off?

A. No.

Q. Was there anyone else that you could see on the street?

A. No.

When Javier Gonzalez was asked to tell the jury what happened after defendant said he was leaving, Gonzalez stated:

Well, Rock asked him are you leaving? He said yes. I'm going to Brunswick. He gets up and . . . Rock told him I'm going to show you a shortcut. He said where you going? He said I'm going to the circle. I'm going to show you a shortcut. He gets up. He shakes my hand. Rock opens the gate. He started walking. He walks outside of the gate. He shakes Christian's hand. So Rock, he was walking down the sidewalk and Bueno was on his left[-]side shoulder behind him and I'd say 15 feet I see Rock pointing to the right direction he was giving to him and I see Bueno's arm raise up. He had a black square gun and he shot him. I heard Rock fall back on his back when he hit the ground. . . . We ran towards Rock. Bueno was jogging. He had tucked his arm under his shirt and he was looking back and I seen blood just coming out of Rock's side of the face so I ran back to the house and I opened the door. I grabbed the cordless phone and I pressed 911 and I still could see Bueno looking back while he was jogging . . . .

Within a few minutes of the shooting, Carteret Police Sergeant Dennis McFadden arrived at the scene, spoke to Gonzalez, and then went to defendant's home where he spoke to defendant's father and his sisters. McFadden asked for and received a photograph of defendant. He was also given defendant's cell phone and pager numbers.

Defendant elected to testify at his trial, and he denied shooting Reed. According to defendant, he was ten or fifteen feet in front of Reed when he heard a loud pop. When he turned around, defendant saw "Rock on the floor" and a "black guy" "in a white shirt" was running. Defendant testified that he ran because "[p]anic just kicked in." Defendant took a cab from Carteret to Plainfield, and then he took a train to New York. Defendant testified that he did not go home because he was scared. Before getting on the train, defendant spoke with his father and sisters on the telephone. When defendant spoke to his father, he told him "he had a problem," and he told his sister, Elibelka, that she was not going to see him for a few years. Elibelka also acknowledged telling the police that her brother told her: "Rock tried to steal money from me and then he tried to stab me, he cut my shoulders and my arms, and so I had to shoot him."

The jury also heard the testimony of Edison Jacquez. Jacquez and defendant worked together at one of the New Jersey Turnpike rest stops. According to Jacquez, he gave defendant a ride home after work on Friday, June 28, 2002. On the ride home, defendant told Jacquez that he was going to meet a friend named "Ra," who owed him several hundred dollars, at a bar. Defendant also said that if the friend did not have the money, he was going to "buck" him, which, according to Jacquez, meant shoot him.

Jacquez told the jury that he spoke to defendant on his cell phone after hearing about the shooting, and he asked defendant what happened. According to Jacquez, defendant told him that he didn't get his money, and he also told Jacquez, "I got him."

Defendant was arrested in Newark on July 12, 2002. He had previously asked a friend to meet him with some money, but the friend contacted the Carteret Police. When the police appeared, defendant ran. However, after a short chase, defendant was apprehended and taken into custody.

In response to defendant's motion for a new trial, the State argued that "there were two eye witnesses, admission[s] to family members," and the evidence of guilt was "simply over-whelming." The trial court agreed, and, based on our independent review of the record, we concur as well.

Although defendant made no objection at trial, he now contends a portion of his cross-examination was improper because it violated his "right to remain silent and deprived him of his constitutional right to . . . a fair trial." During cross-examination, the assistant prosecutor asked defendant about his telephone records which showed that he received a telephone call at approximately 4:18 a.m. while he was riding in a cab on his way to the train station.

Q. 4:12 called that 917 number again. 4:12 they're calling you back. 4:12:18, you see that entry?

A. Yes.

Q. That's when McFadden called you, right?

A. Yes.

Q. He identified himself as a police officer?

A. Yes.

Q. And he said why don't you come down and talk to us, something like that?

A. Yes.

Q. And you didn't tell him anything about witnessing a shooting or anything, right?

A. Well, he told me that there was a shooting and he wanted me in for questioning and I told him yes, give me about a half an hour and I'll be there.

Q. Did that ever happen?

A. No.

Q. Did you ever give a description of this so called shooter that you saw?

A. No. I didn't want nothing to do with it.

Q. You're still in the cab at this point?

A. Yes.

Q. 4:15 you are on that 917 number again. . . . [T]hat's McFadden calling you back, correct?

A. Yes, I believe so.

Q. Again you didn't tell him anything about the shooting at that point, right?

A. I didn't talk to him again after that.

Q. Did you answer the phone if you recall?

A. It probably went into my voice mail. I don't know.

"A suspect has a right to remain silent while in police custody or under official interrogation, in accordance with his state law privilege against self-incrimination." State v. Muhammad, 182 N.J. 551, 558 (2005). Moreover, this silence "cannot be used against him in a criminal trial." Ibid.; see also State v. Deatore, 70 N.J. 100, 115 (1976). In this case, we are not persuaded that the questions that were asked of defendant violated his right to remain silent. When the telephone conversation took place, defendant was not in custody, and the conversation did not take place "at or near" the time of defendant's arrest. State v. Muhammad, supra, 182 N.J. at 569. Moreover, the testimony elicited from defendant during cross-examination was properly admitted to call into question defendant's inconsistent statements--including his promise to meet with the police and his subsequent failure to do so. We are satisfied that defendant's statements to McFadden during a telephone conversation, which occurred almost two weeks before defendant's arrest when defendant was not in police custody, do not implicate defendant's right against self-incrimination. State v. Brown, 118 N.J. 595, 613 (1990). And defendant's failure to meet with McFadden after telling him that he would "be there" in about a half an hour had a direct bearing on defendant's credibility.

Defendant also claims for the first time that questions asked of defendant during cross-examination "were designed to portray Bueno as a coward," and the assistant prosecutor improperly "sought to inflame the jurors and distract them from their task of evaluating the evidence and reaching a fair verdict." We do not agree. An appellate court reviewing an allegation of prosecutorial misconduct must determine whether the conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). We must consider a variety of factors, including: (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Ibid.

Because defense counsel did not object at trial, we infer that the defense did not believe that the questions asked of defendant were improper or unduly prejudicial. Id. at 83-84; see State v. Darrian, 255 N.J. Super. 435, 457-58 (App. Div.) certif. denied, 130 N.J. 13 (1992) (noting that defense counsel's failure to object at time of trial indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's comments were prejudicial).

In this case, defendant was asked about his actions on the night of the murder and on the day of his capture. The questions were meant to highlight the disparity between defendant's testimony and the testimony of the State's witnesses. Based on our review of the record, we conclude that defendant's claim of prosecutorial misconduct has no merit. Moreover, we are satisfied that any possible error was harmless beyond a reasonable doubt. State v. Macon 57 N.J. 325, 340-41 (1971); R. 2:10-2.

Defendant also contends that the imposition of a fifty-five-year prison term on the murder conviction violates his constitutional right to trial by jury. This argument has been considered and rejected by the Court. "[B]ecause the crime of murder has no presumptive term, defendant, like every murderer, knows he is risking life in prison." State v. Abdullah, 184 N.J. 497, 508 (2005).

Lastly, defendant contends that his sentence is excessive. There is no merit to this argument. Defendant's sentence does not represent a miscarriage of justice or shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Jarbath, 114 N.J. 394, 401 (1989); State v. Ghertler, 114 N.J. 383, 387-88, 393-94 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

 

(continued)

(continued)

12

A-1394-04T4

June 1, 2006