STATE OF NEW JERSEY v. JUAN QUINONES

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0269-04T10269-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN QUINONES,

Defendant-Appellant.

_________________________________________

 

Argued September 10, 2007 - Decided:

Before Judges Stern, A. A. Rodr guez and C. S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 02-04-0479.

Terry Bograd argued the cause for appellant (Ronald S. Fava, attorney and on the brief).

Steven E. Braun, Chief Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Braun, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Juan Quinones was convicted of the first-degree murder of Timothy Jones, N.J.S.A. 2C:11-3a(1) and (2) (count 1); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count 2); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count 3). The judge merged the count 2 conviction into the murder conviction and imposed a sixty-year term with a NERA parole disqualifier; five years of parole supervision upon release; and the usual mandatory penalties and fees. On count 3, the judge imposed a consecutive five-year term. We affirm the convictions and the sentence on count 1, but vacate the sentence on count 3 for reconsideration pursuant to State v. Natale, 184 N.J. 458 (2005) (Natale II).

These are the salient facts. Defendant admitted that, the night before the murder, Ray Williams and Charles Morgan came to his home. There was an intimate prior relationship between Williams and defendant, involving payment for sexual activity. Williams and Morgan went into defendant's bedroom with defendant and locked themselves inside. Defendant's daughter, Janisha Foreman, was present in another part of the apartment. Eventually, Williams and Morgan called for a ride. When Janisha came into the bedroom to inform them that their ride had arrived, defendant was naked in bed and unconscious. Because the only way to exit the apartment was to unlock a deadbolt with a key, Williams attempted to wake defendant. However, defendant was unresponsive. Finally, Williams searched defendant's pants and found the key to the door. Williams later admitted that he left the house with the keys and the pants, which contained defendant's wallet with $300 inside.

Williams spent the night at a friend's house. The next day, on November 15, 2001, defendant went to Williams's neighborhood looking for him. Around this time period, Williams was living with his sister Brenda Gillison and her boyfriend Timothy Jones, the victim. Defendant went to Williams's house, armed with a hammer, and asked Gillison if Williams was there. Gillison responded no. Defendant left, but returned quickly. This time Jones was at the door. Jones told defendant that he would relay the message to Williams and explained that he and Gillison did not see Williams frequently. Jones told defendant not to come back. A fistfight scuffle ensued.

Akeem Wilder, Jones's neighbor heard screaming and went to the front area of the building. He saw Jones and defendant "tussling." A crowd of between thirty and fifty people gathered. This crowd was mostly hostile to defendant. Wilder became involved in the tussle by kicking defendant in the mouth. Defendant fell backwards. Wilder and Jones backed away. Defendant's son, Juan Quinones, Jr., nicknamed "John-John," picked his father up from the ground and handed him a handgun. Jones pushed Wilder out of the way. According to Wilder, defendant shot Jones once in the chest and afterward, froze . . . and then he ran to a car" and fled. Defendant's sister, Lillian Roman, his brother-in-law, Efrain Reyes, and John-John were all in the vehicle. Defendant was arrested approximately two months later in Philadelphia by an FBI Task Force.

Rashawn T. Morgan, Terrence Morgan and Anthony Caminero testified that they were witnesses to the fight. According to them, there was a fistfight between Jones and a "Spanish guy." At some point, the Spanish guy took a gun and shot Jones. Rashawn T. Morgan identified defendant at trial as the "Spanish guy."

Kreshaun Barker also testified that he witnessed the fight between Jones and the defendant, or as he knew him, "Fuzzy." He testified that he had known defendant from seeing him around the neighborhood for the past six or seven years. On the date of the incident, he observed defendant go into the apartment building where Jones lived at around 1:30 p.m. and then he left 10 to 20 minutes later. Later that evening, he came upon defendant and Jones fighting. Barker said that defendant's son, who was standing to the right of his father, handed defendant a gun. Barker then saw defendant shoot Jones once from about three feet away. Barker positively identified defendant as the shooter at trial. Jones was pronounced dead the day of the incident. The bullet went through the right ventricle of his heart.

Seven days after the commencement of the trial, defense counsel, Gregory Aprile, announced to the court that he had represented witness Williams in a drug possession charge the year before. Defense counsel stated on the record:

I'll continue by saying if I felt, as I've expressed to my client, if I felt in any way I would be inhibited in cross examining [] Williams or that I had gained some kind of particular knowledge or insight about him that I was now going to use, I would have disclosed that to the State or disclosed that to my client and if I felt in one way or the other my prior representation of [] Williams would affect in any way my ability to continue in this matter.

The fact of the matter is as with Janisha Foreman, because of the circumstances of what was taking place the night before and because I did not wish to possibly open the door to certain of those activities by questioning either [] Foreman or [] Williams about the events that were occurring that night, and because ultimately it was not ever an issue that my client's wallet had been taken and believed that it had been taken by [] Williams and that he had gone out the next day on a couple of occasions to look for [] Williams to get his wallet back, I had intended to ask very little, if any, cross-examination. . . . I believe if I continue in this matter, there's going to be a voir dire of [] Williams.

Subsequently, the following colloquy between the court and defendant occurred:

THE COURT: [Mr.] Quinones, are you satisfied that you understand what we're dealing with now or do you have any question[s] about it? Before I ask you how you feel about it, I want to be sure that you understand what it is that we're involved with now.

THE DEFENDANT: Yes, I fully understand, your Honor.

THE COURT: You do, okay. Because Mr. Aprile represented Mr. Williams during the course of time that your case was pending, these charges - and when I say your case, I mean this case we are trying now - there is an issue as to whether or not there is a conflict and whether or not Mr. Aprile should be allowed to continue to represent you.

Your position about this makes a difference, something that I have to consider. If I found that there was a conflict, that means that Mr. Aprile would not be allowed to represent you anymore and we would have to stop the trial and a new attorney would have to be assigned. We would have to try the case at another time if that's the way it was. . . .

Now, if there is a conflict, we would start all over again. Do you understand that?

THE DEFENDANT: Yes, I do, your Honor.

. . .

THE COURT: And Mr. Aprile indicates to me - well, you tell me. Do you want Mr. Aprile to continue to represent you even though he represented Mr. Williams who is a State's witness against you?

THE DEFENDANT: Yes, I do, your Honor.

THE COURT: I'm asking you this now [defendant] because I want the reporter to show this. If I allowed Mr. Aprile to continue, you wouldn't be able to come back on some later date and say now that I've got a new attorney and he's talked to me about this, I realized I made a mistake and I should have asked the judge to get me a different lawyer and not had Mr. Aprile represent me. Of course, if you can't afford an attorney, you could get an attorney assigned from the Public Defender's Office. Mr. Aprile does a whole lot of that, and so there are very good lawyers.

Do you understand that by saying this now, you are giving up your right to essentially claim that this was a mistake later on if things turn out badly for you at this trial? Do you understand that's the meaning of this?

THE DEFENDANT: Yes, I do, your Honor.

THE COURT: Do you have any question at all about that?

THE DEFENDANT: No, you Honor.

THE COURT: Have you been satisfied with the services you have received from Mr. Aprile?

THE DEFENDANT: Yes, I am, your Honor.

THE COURT: Do you feel that it would cause you harm if he were not allowed to represent you anymore? In other words, that it would hurt you to go get a different lawyer other than Mr. Aprile?

THE DEFENDANT: Yes, it would.

Williams testified out of the presence of the jury to the events that took place the day before the murder in defendant's room, including the sexual encounter, the drugs and his taking of the wallet containing $300. Williams testified that he spoke with defendant on the telephone about the money, but grew frustrated and decided to spend the money.

The judge ruled that there was no conflict sufficient to discontinue the trial or disqualify Aprile. On direct examination before the jury, Williams admitted that he took the $300 from defendant's wallet. Aprile did not cross-examine Williams, explaining that there were no issues in dispute concerning the events of November 14, 2001.

At trial defendant's son, John-John, did not testify. The Assistant Prosecutor asked defendant's mother, Maria Roman, and sister, Lillian Roman, about John-John's whereabouts and implied that defendant arranged to have John-John unavailable for trial. It was established that John-John lived most of his life in Seattle, Washington with his mother. For a few months prior to the shooting, John-John lived with defendant on Totowa Avenue in Paterson. After this incident, John-John gave a statement to the police that was exculpatory to defendant. However, following John-John's arrest as a juvenile for possession of a weapon, he gave another statement inculpating defendant as the shooter. The address in the juvenile complaint was the correct Washington State address.

An investigator from the Passaic County Prosecutor's Office went to the Totowa Avenue address. He was told that John-John lived in Seattle, Washington. The investigator attempted to send a letter to the Seattle address given in the juvenile complaint. He improperly addressed the envelope with the wrong street address and zip code and it was returned marked "no such street address." No telephone call was made to the telephone number in Seattle, which was in the Prosecutor's Office's possession.

At trial, defendant did not testify. His mother testified about the aftermath of the shooting. She and other relatives took defendant to Elizabeth and then to a hospital away from the Paterson area. In response to the Assistant Prosecutor's question, she testified that John-John had returned to Seattle after the juvenile proceedings against him were concluded. According to her, she had not seen nor talked to John-John since he returned to Seattle over two years before. She acknowledged that she speaks to John-John's sister all the time and that is how she knows what is going on with him. Then the following exchanged occurred:

[ASSISTANT PROSECUTOR]: Q. Mrs. Roman, are you trying to hide John-John from this trial?

[DEFENSE COUNSEL]: Judge, I object to the question.

[THE COURT]: Overruled. I'll allow it.

A. No.

Q. Mrs. Roman, wasn't there some discussion about whether John-John's presence at the trial would affect the case?

[DEFENSE COUNSEL]: Discussion, Judge? I have an objection to that question.

There was a discussion out of the presence of the jury, wherein the Assistant Prosecutor indicated that Janisha Freeman told him that John-John was in New Jersey about two weeks before trial and that "[Maria] Roman sent him to Washington." Out of the presence of the jury, defense counsel advised the judge that he was aware that John-John had not been subpoenaed by the State and that he had not subpoenaed John-John. In front of the jury, Maria Roman testified that John-John left for Seattle more than two years before the trial. She has not seen him since.

Lillian Roman, defendant's sister, testified for the defense. She indicated that at the time her subpoena arrived her husband Efrain Reyes was in Puerto Rico. She contacted him so that he would be available at trial. Reyes appeared and testified. During Lillian Roman's cross-examination, the following exchange occurred:

[ASSISTANT PROSECUTOR]: Q. You knew John-John was a witness to this, is that correct?

[LILLIAN ROMAN]: A. Yes, sir.

Q. Because he was with you?

A. Yes, sir.

Q. All right. You knew that you were a witness?

A. Yes, sir.

Q. And you expected to testify?

A. Uh-huh.

Q. You knew Efrain was a witness?

A. Yes, sir.

Q. You expected him to testify?

A. Uh-huh.

Q. You did something to make sure he would be here; is that correct?

A. Yes.

Q. All right. So did you expect that John-John would be a witness?

A. Well, I knew Efrain had a subpoena to testify and I had received mine. I called Efrain and I told him that he had to come down, he had a subpoena.

Q. All right. But did you expect that John-John would be a witness to testify?

A. No.

Q. Do you know where John-John is?

A. Seattle, Washington.

Q. And he is your nephew is that correct?

A. Yes.

Q. Were there any discussions that you were present for about having John-John come and to bring him here?

A. No, sir.

Q. Are you currently living at 515 Totowa Avenue? Is that where you are residing now, Ms. Roman?

A. Yes, sir.

Q. How long have you been residing there? Is it the past few weeks, few months, few years?

A. Since the incident.

Q. Okay. When was the last time that you saw John-John?

A. When he left. When he was arrested.

Q. When was that? I'm not talking about dates. Are we talking about two-and-a-half years ago or something like that?

A. Yes.

The State moved for a Clawans charge. The judge denied this request. Despite this ruling, the Assistant Prosecutor argued in summation:

Well, this is an example of a gut feeling. When Miss Roman-well, I was just simply trying to find out where John-John was, and it seemed like it took forever. When I said when was the last time that you saw John-John, when was it, it seemed to me - and I don't know how you felt - but she was being evasive about that and she wasn't being honest about that.

The judge permitted defendant to "argue that the State did not make a serious effort to get defendant's son for trial, even with a telephone number which could have been dialed, but was not." In summation, defense counsel argued that the State had not proven that defendant shot Jones. Defense counsel tried to explain defendant's flight after the incident as a result of the hostile crowd, not as an indication of guilt. However, as a fallback position, defense counsel argued to the jury:

If when all is said and done you, as the jury, come to the decision or to the determination that [defendant] did fire the weapon and shot Timothy Jones at the time, I submit to you, ladies and gentlemen, that the only thing that the State has proved, if they have proved that element, was that this shooting was done under some form of provocation or justification.

Thus, the essence of the defense was a credibility challenge to the testimony of Barker, Wilder and Rashawn T. Morgan that they saw defendant or "Fuzzy" shoot Jones. It was also a challenge to the testimony by Terrence Morgan and Caminero that the "Spanish guy" shot Jones.

During its deliberations, the jury sent a note asking: "Testimony of Lillian Roman, when was the last time she saw John-John?" After consulting with counsel, the judge ordered a read back of the following excerpt of Lillian Roman's testimony:

[ASSISTANT PROSECUTOR]: Q. Okay. When was the last time that you saw John-John?

[LILLIAN ROMAN]: A. When he left. When he was arrested.

Q. When was that? I'm not talking about dates. Are we talking about two-and-a-half years ago or something like that?

A. Yes.

On appeal, defendant contends:

COUNSEL'S PRIOR REPRESENTATION OF STATE WITNESS, RAY WILLIAMS, DEPRIVED DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO BE REPRESENTED BY CONFLICT FREE COUNSEL IN VIOLATION OF U.S. CONST. AMENDS. VI & XIV.

DEFENDANT'S PURPORTED WAIVER OF HIS RIGHT TO CONFLICT-FREE REPRESENTATION WAS UNINFORMED AND INADEQUATE TO PROTECT DEFENDANT'S SIXTH AMENDMENT RIGHT TO BE REPRESENTED BY COUNSEL UNENCUMBERED BY CONFLICTING INTERESTS IN VIOLATION OF U.S. CONST. AMENDS. VI & XIV AND NEW JERSEY CONST. (1947) ART. 1 SECTION 10.

Specifically, defendant argues that, "[b]y foregoing an opportunity to expose Williams as a robber or a thief before the jury, defense counsel failed to develop testimony which would have shown Williams'[s] true character." We do not agree. Defendant also argues that Williams's claim, out of the presence of the jury, that he telephoned defendant on the night he took defendant's wallet was not repeated in the statement Williams gave to the police five days after the events, yet counsel never brought this material omission out before the jury.

This case is similar to State v. Purnell, 126 N.J. 518 (1992), a capital murder case, where trial defense counsel had previously represented a State's witness (James Berry). The Purnell defendant acknowledged the conflict, but requested to maintain trial counsel. Id. at 535. On appeal, the Supreme Court rejected defendant's argument that the conflict denied him the effective assistance of trial counsel. Ibid. The Court held:

Defendant's argument is highly speculative. Nothing in the record suggests that defense counsel was prevented from serving as a "vigorous partisan" of defendant's interests. See State v. Bellucci, 81 N.J. 531, 541 [] (1980). Berry's case was wholly unrelated to defendant's case. There is no indication that defense counsel was forced to choose between betraying Berry's confidences or compromising his duty to defendant by not cross-examining Berry fully and uninhibitedly. Defense counsel was not prevented from cross-examining Berry fully and he appears to have conducted his cross-examination ably. Moreover, defendant consented in open court to counsel's continued representation. Defendant now claims that his consent was thrust on him at the last moment and was neither knowing nor voluntary. However, defendant's consent appears on the record, and there is no suggestion that he was coerced or deceived into consenting.
 
[Id. at 535-536.]

On this record, we conclude that, based on Aprile's prior representation of Williams, defendant was not denied a fair trial, nor the effective assistance of trial counsel. We note that: (1) Williams's testimony was marginal in that it simply explained how he was at defendant's home the day before the homicide and why defendant came looking for Williams; (2) Williams was not at the scene of the homicide; (3) both the State and defense agreed, no matter what the circumstances behind taking of the wallet were that the wallet was in fact taken by Williams; and (4) both sides agreed that on the next day, defendant looked for Williams on a few occasions to try to get his wallet back. All of these facts were either admitted by Williams or conceded by defendant. Cross-examination of Williams would not have developed these points further, but it might have opened the door for testimony about defendant's use of narcotics and paying Williams for sex on prior occasions.

Moreover, nothing in the record suggests that trial counsel "was forced to choose between betraying [] confidences or compromising his duty to defendant by not cross-examining" Williams. Purnell, supra, 126 N.J. at 535. Nor was trial counsel "prevented from serving as a 'vigorous partisan' of defendant's interests." Ibid.

As to whether defendant's consent was adequate, nothing in the record suggests that he was coerced or deceived into consenting. Id. at 536. Defendant made an "adequately informed" waiver of a potential conflict. See United States v. Allen, 831 F.2d 1487, 1500 (9th Cir. 1987), cert. denied, 487 U.S. 1237, 108 S. Ct. 2907, 101 L. Ed. 2d 939 (1988); Purnell, supra, 126 N.J. at 535. Cf. State ex rel. S.G., 175 N.J. 132, 143 (2003) (finding that an actual and direct conflict cannot be waived).

Defendant also contends:

IT IS REVERSIBLE ERROR TO ALLOW THE STATE TO QUESTION DEFENDANT'S WITNESSES AND COMMENT IN SUMMATION UPON DEFENDANT'S FAILURE TO PRODUCE JUAN QUINONES, JR. [JOHN-JOHN] FOR TESTIMONY.

Specifically, defendant contends that he was prejudiced by the judge "repeatedly allow[ing] the State to question defendant's witnesses regarding [John-John's] location, and imply that defendant had something to do with scuttling his testimony." We are not persuaded.

We begin our analysis be reviewing the governing authorities. In State v. Clawans, 38 N.J. 162 (1962), the Supreme Court set guidelines for giving an adverse inference instruction to the jury to the effect that it may draw such an inference from the failure of a party to produce a witness. The movant must establish that the adversary has the power to produce a party, whose testimony would have been superior to other evidence developed to prove a certain fact. Id. at 171. Clawans dealt with the denial of a jury instruction. Id. at 170. However, in State v. Carter, 91 N.J. 86, 127-28 (1982), the Supreme Court extended the Clawans holding to comments by the Prosecutor that an adverse inference should be drawn from the non-production of a witness. The Court explained the Clawans rule in the following manner:

Where one party has superior knowledge of the identity of a witness or of what testimony might be expected or where a certain relationship, such as employer-employee, exists between the witness and a party, the adverse inference [regarding the party's failure to produce the witness] may properly be argued to the jury.

Therefore, "It is only after all the particulars are disclosed that the trial court may properly determine whether the inference should be urged in summation." Id. at 128. See also United States v. Blakemore, 489 F.2d 193, 195-96 (6th Cir. 1973) (holding that the trial judge must first find there is an indication of a relationship between the party and the witnesses and "that the anticipated testimony of the uncalled witnesses will 'elucidate the transaction'" before comment is proper). In State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986), we held that:

In the future trial courts should carefully consider all of the circumstances and restrict comments of counsel to those instances where the court first determines on the record (1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue, and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven. See . . . Wynne v. United States, 397 F.2d 621, 625 (D.C. Cir. 1967); Pennewell v. United States, 353 F.2d 870, 871 (D.C. Cir. 1965); see also State v. Sinclair, 49 N.J. 525, 549 (1967).

Here, the judge found that Maria Roman was being evasive and agreed with the Assistant Prosecutor that she "was able to spend the money and fly a witness beneficial to the defense from Puerto Rico to New Jersey," but not "the grandson they are in contact with [John-John who] is not here, who is the one that was right on top of the scene and could see it." Despite the finding, the judge denied the adverse inference charge request by the State.

This was not a Clawans situation. Therefore, the judge was correct in not giving the adverse inference charge. In fact, it would have been reversible error to have done so. First, we note that the instruction is tied to credibility. The jury is asked to evaluate the credibility of a witness that has testified by noting that another person, who was not called, would have corroborated the testimony. Thus, the jury can infer that the failure to produce the second person indicates that such person would contradict the testimony given.

That did not occur here. Defendant did not testify. Therefore, his credibility was not an issue. The credibility of Maria Roman and Lillian Roman was not really an issue because their testimony only went to explain defendant's flight from the scene not whether or not he shot Jones.

Second, a defendant has no duty to disprove guilt. Therefore, an adverse inference in favor of the State and against a defendant should be limited to those circumstances where a defense witness has asserted facts, such as an alibi or that another person committed the crime. No such assertion was made here. We note, as does the defendant's brief, that most adverse inference charges against defendants involved the impeachment of the defendant or an alibi witness. See State v. Irving, 114 N.J. 429, 442 (1989); Carter, supra, 91 N.J. at 127-28; Clawans, supra, 38 N.J. at 167-68; State v. Driker, 214 N.J. Super. 467, 470 (App. Div. 1987); Hickman; supra, 204 N.J. Super. at 413. In each of these cases, the adverse-inference charge request or the comments made by the State were directed towards the defendant's credibility regarding either his actual testimony or the alibi presented.

Third, the State sought to draw the adverse inference from the non-production of its own witness. The State could have produced John-John. Given John-John's second and last statement to the police, his testimony would have been favorable to the State and unfavorable to his father. Neither defendant nor his family have a duty to help the State locate its own witnesses. As noted before, the whereabouts of John-John were known to the State. The failure to subpoena him was not due to the defendant or his family's lack of cooperation, but to the Assistant Prosecutor's failure to follow through.

Thus we conclude that this case did not present a Clawans situation. Although the judge did not give the charge, we still must analyze the impact of the Assistant Prosecutor's questions and comments on defendant's right to a fair trial. We conclude that the comments, although improper and given without leave of court, do not warrant a new trial. The comments were improper because the State proceeded without announcing to the judge that it would seek an adverse inference charge, or without waiting a ruling in its favor. However, in light of the testimony by Barker, Wilder, Rashawn Morgan, Terrence Morgan and Caminero that defendant or the "Spanish guy" shot Jones, we conclude that the Assistant Prosecutor's questions and remarks were harmless. The judge instructed the jury repeatedly that the State had the burden of proving defendant's guilt beyond a reasonable doubt and that defendant was presumed innocent and had no burden to prove any facts. The jury was aware that the Prosecutor knew that John-John lived in Seattle, Washington and the Prosecutor's Office had John-John's current address and telephone. Therefore, the questions put to Maria Roman and Lillian Roman as to their knowledge of John-John's whereabouts are irrelevant. John-John could have been produced by the State. As stated before, John-John was a State witness, not a witness that defendant would be expected to call. The same analysis applies to the comments on summation. They are simply an attack on the credibility of Maria Roman and Lillian Roman. We cannot speculate that the jury reached a result that it would not have otherwise reached in order to punish them for not aiding the State in transporting John-John to New Jersey in order to testify at the trial.

Our colleague, in his concurrence, indicates that:

In my view, this circumstance required that the trial judge instruct the jury that it could not draw an inference against defendant based on John-John's absence from the trial; indeed, I believe State v. McGraw, 129 N.J. 68 (1992) required such a cautionary instruction.

He also adds, that based on the express holding of McGraw, he "would find that the trial judge erred in failing to sua sponte instruct the jury on this point," i.e. drawing no inference from John-John's absence at trial. First, we note, that defendant is not contending on appeal that the judge should have issued a sua sponte limiting instruction. Rather the focus of defendant's contention is the Assistant Prosecutor's questions and comments.

Second, we note that McGraw is distinguishable on the facts. In McGraw, defendant testified that his version of the facts would be corroborated by his brother Larry. However, Larry did not testify, choosing to invoke his Fifth Amendment privilege. Here, defendant did not testify. Moreover, no witness (State or defense) testified that John-John would exculpate his father. Although one witness, Kreshaun Barker, testified that John-John handed defendant a gun, the same witness indicated that defendant then shot the victim. The only exculpation of defendant came in John-John's statement to the police. This statement was later repudiated by John-John and was never admitted in evidence at trial.

Also, in McGraw the jury could logically infer that Larry did not testify because he could not corroborate the defendant's testimony, as the defendant had predicted. By contrast, in this case, the jury could not reasonably infer that John-John would exculpate his father. In fact, the questioning and comments of the Assistant Prosecutor implied the contrary, that John-John would inculpate his father and for that reason his family kept him from testifying. We nevertheless find no plain error because the trial judge did not give limiting instruction sua sponte. Such a summation should not have been given without leave of court and could have been understood to affect the State's burden of proof. We conclude, as did the Court in McGraw, that "because defendant failed to object to the absence of such an instruction, we must find the court's error to have been clearly capable of producing an unjust result before we can reverse defendant's convictions. R. 2:10-2." McGraw, supra, 129 N.J. at 80. The McGraw court found that the omission did not constitute plain error. Ibid. We do the same here because there was universal testimony that defendant shot Jones.

Defendant also contends:

THE PERFORMANCE OF DEFENSE COUNSEL DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO U.S. CONST. AMEND. VI AND N.J. CONST. (1947) ART. 1, PARA. 10 (Not Raised Below).

Defendant argues that, independent of Aprile's conflict due to the representation of Williams, Aprile rendered ineffective assistance. Some of these allegations of ineffective assistance can be adequately reviewed on the trial record. Defendant argues that Aprile failed to object to the Assistant Prosecutor's statements that the victim was a good person and a role model who was loved by all, and that defendant was naked in his bedroom with some men and appeared to be unconscious. We reject this argument because defendant has failed to establish that Aprile's "representation fell below an objective standard of reasonableness" in light of all the circumstances. Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Moreover, defendant failed to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Fritz, 105 N.J. 42, 52 (1987).

Defendant also faults Aprile for not excising defendant's nickname "Fuzzy" from the indictment or the testimony. He argues that the use of his nickname constituted ineffective assistance of counsel. However, this argument is not persuasive because "[t]he use of defendant's street nickname during trial cannot serve as a per se predicate for reversal." State v. Paduani, 307 N.J. Super. 134, 146 (App. Div.), certif. denied, 153 N.J. 216 (1998). First, it is noted that this case did not involve the use of an alias, as in State v. Salaam, 225 N.J. Super. 66, 72-73 (App. Div.), certif. denied, 111 N.J. 609 (1988). Second, the nickname "Fuzzy" does not indicate guilt nor is it pejorative. Moreover, defendant has pointed to no tangible form of prejudice attributable to the use of his nickname during trial and our independent review of the record reveals none.

Defendant also argues that, "[t]hree out-of-court identifications from photo-lineups were introduced into evidence in this case without any objection from defense counsel, even though they were contrary to the April 18, 2001 Attorney General Guidelines. . . ." This argument is without merit. We agree with the State that "identity was never a genuine issue in this case and [t]he record does not divulge any irregularities in conducting photographic line-ups." Moreover, failure to comply with the Attorney General Guidelines is insufficient to warrant exclusion of the evidence. See State v. Herrera, 187 N.J. 493, 501-04 (2006). The language of the Guidelines itself states: "The issuance of these Guidelines should in no way be used to imply that identification made without these procedures are inadmissible or otherwise in error." Id. at 514.

Defendant also argues that because State witness Kreshaun Barker "presumably testified in prison garb[,]" without objection, defendant was denied effective assistance of counsel. However, the record does not indicate Barker was dressed in prison attire. This fact cannot be assumed. The issue may be explored at a post-conviction relief (PCR) proceeding.

There are other claims of ineffective assistance by trial counsel which rely on facts outside the record. For example, defendant contends that his counsel's summation was inadequate, ineffective and focused on the defense that defendant was not the shooter, rather than self-defense or provocation. However, we note that Aprile did argue in his summation that even if the jury were to find that defendant shot Jones, it was done because he was either provoked or justified. It is settled that, "except in the most extreme cases, strategic decisions made by defense counsel will not present ground for reversal on appeal." State v. Loftin, 146 N.J. 295, 336 (1996) (citations omitted). Whether this was a strategic decision must abide an evidentiary hearing. Therefore, this claim of ineffective assistance of trial counsel is preserved for a PCR petition. State v. Preciose, 129 N.J. 451, 460 (1992).

Defendant also contends that Aprile rendered ineffective assistance in other ways. He claims that: (a) Aprile should have excused peremptorily or for cause Juror 12, a Division of Youth and Family Services worker, who recognized defendant's sister and witness, Lillian Roman, an agency client; and (b) Aprile did not "interview the witnesses in the case, despite his duty to perform investigation [specifically John-John]." These claims are also preserved for a PCR petition that defendant may file. We decline to consider them at this time.

Defendant also challenges his sentence. He contends:

FACTORS NOT DIRECTLY RELATED TO DEFENDANT'S PRIOR CRIMINAL RECORD WERE THE BASIS FOR THE IMPOSITION OF A GREATER-THAN-PRESUMPTIVE SENTENCE, THEREFORE, DEFENDANT IS ENTITLED TO A RE-SENTENCING HEARING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005) (NATALE II) (Not Raised Below).

We agree that a remand is necessary with respect to the sentence on count 3 only. We reject defendant's argument that the sentence imposed on the murder conviction should be vacated pursuant to Natale II. We conclude, as the State correctly argues, that the Apprendi line of cases has no application to the sentence imposed on a murder conviction because the Code of Criminal Justice does not set a presumptive term for that offense. State v. Abdullah, 184 N.J. 497, 507 (2005).

On defendant's conviction for the third-degree charge of unlawful possession of a weapon, the judge imposed a five-year term, which is greater than the midpoint of the third-degree range.

In Natale II, supra, 184 N.J. at 482, the Court held that, aside from prior convictions, "the Sixth Amendment prohibits a judge from imposing a sentence greater than that allowed by the jury verdict or by the defendant's admissions. . . ." Thus, the maximum sentence that could be imposed is the presumptive sentence because this was deemed to be the statutory maximum. Id. at 484 (citing Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)). The Court then held that presumptive terms were eliminated, and therefore, the maximum term is the top of the statutory range set by the New Jersey Criminal Code for the crime charged. Id. at 487.

This holding was given "pipeline retroactivity" effect "to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Blakely claims at trial or on direct appeal. . . ." Id. at 494.

The Court refined the Natale II holding in State v. Thomas, 188 N.J. 137, 148, 153 (2006), by observing that remand is necessary when a defendant is sentenced beyond the statutory maximum based only on aggravating factors, N.J.S.A. 2C:44-1a (3), (6) or (9), which were formerly believed to fall within the recidivism exception. Moreover, the Court noted that it would be more "prudent, constitutionally, to construe narrowly the 'facts' that Blakely's prior-conviction exception permits a sentencing court to consider." Id. at 153. A sentencing court's findings of the existence of these factors is a qualitative assessment, which the court is expected to make, but which goes beyond the simple finding that the offender has a criminal history. Ibid.

Here, the judge found aggravating factors (3), (6) and (9). Defendant was sentenced on May 28, 2004, before the Natale II decision was decided on August 2, 2005. Defendant filed a direct appeal on September 15, 2004. Therefore, he benefits from the pipeline for Natale II purposes.

Accordingly, the convictions and the sentence on Count 1 are affirmed; the sentence on Count 3 is vacated and remanded to the Law Division, Passaic County, for re-sentencing. We do not retain jurisdiction.

___________________________________

FISHER, J.A.D., concurring.

I join my colleagues in affirming the judgment under review. I write, however, to express my views concerning the "missing witness" issue.

Defendant did not testify, but the theory espoused by his counsel at trial was that, although present, defendant did not fire the pistol that killed the victim. Defendant's son, Juan Quinones, Jr. (John-John) was an eyewitness but was not called to testify. During cross-examination of defendant's witnesses and in his summation, the assistant prosecutor explored and discussed John-John's absence from the trial.

The record reveals that most of his life, John-John resided with his mother in Seattle. Although he apparently took up residence with defendant in Paterson a few months prior to the incident in question, John-John returned to Washington sometime thereafter. During the trial, the State elicited testimony from defendant's mother, Maria Roman, and defendant's sister, Lillian Roman, about John-John's whereabouts. Unmistakably, the assistant prosecutor attempted to demonstrate, through his examination of these defense witnesses, that although defendant was able to secure the testimony of Efrain Reyes, who was in Puerto Rico at the time of trial -- because his testimony was helpful to the defense -- defendant had failed to make efforts to secure John-John's appearance from Washington.

With little subtlety, the assistant prosecutor, over defendant's objection, asked Maria Roman whether she was "trying to hide John-John from this trial?" Lillian Roman was similarly asked whether there were "any discussions" among family members about bringing John-John from Washington to testify. Although Maria and Lillian disputed the assistant prosecutor's suggestions, seeds had undoubtedly been planted in the minds of the jurors.

Believing that the State had sufficiently demonstrated in this manner that defendant had the ability to call John-John as a witness but had chosen not to, the assistant prosecutor requested that the judge charge the jury that defendant's failure to call John-John as a witness permitted an inference that John-John's testimony would have hurt or refuted defendant's theory that he was not the shooter, citing State v. Clawans, 38 N.J. 162 (1962). The trial judge refused, and the majority has held -- and I agree -- that this ruling was correct. Indeed, since defendant had never argued or provided evidence to suggest that John-John would support his contention that he was not the shooter, the drawing of an adverse inference against defendant would have been erroneous and quite prejudicial.

It seems presently clear that an inference may be drawn against a criminal defendant only where the defendant "has presented evidence to inject an issue, such as an alibi or an alternate explanation for his or her appearance at the scene of the crime." State v. Velasquez, 391 N.J. Super. 291, 309 (App. Div. 2007) (citing State v. Wilson, 128 N.J. 233, 243-45 (1992) and State v. Irving, 114 N.J. 427, 442-43 (1989)). Defendant never argued what he believed was John-John's version of the events. Moreover, the record reveals that John-John gave inconsistent statements about the shooting, suggesting that his testimony would not be entirely helpful to defendant -- or to the State, for that matter. And the trial judge observed that John-John was as available to the State as he may have been to the defendant. Accordingly, there was -- as the trial judge correctly held -- no legitimate basis for an instruction authorizing the jury to draw an inference against defendant for failing to call John-John as a witness.

In my view, however, the trial judge's resolution of the issue should have gone further. Needless to say, there are significant Fifth Amendment values at stake when the State draws a jury's attention to a missing witness during a criminal trial. An accused is constitutionally presumed innocent, Clark v. Arizona, 548 U.S. 735, __, 126 S. Ct. 2709, 2729, 165 L. Ed. 2d 842, 870 (2006); Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692, 48 L. Ed. 2d 126, 130 (1976), and is not required to speak or produce witnesses when charged with a crime:

The defendant, under our Constitution, need not do anything at all to defend himself, and certainly he cannot be required to help convict himself. Rather he has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, provide its own facts, and convince the jury through its own resources. Throughout the process the defendant has a fundamental right to remain silent, in effect challenging the State at every point to: "Prove it!"

[Williams v. Florida, 399 U.S. 78, 112, 90 S. Ct. 1893, 1912, 26 L. Ed. 2d 446, 483 (1970) (Black, J., dissenting).]

Accordingly, a jury's adoption of a missing witness inference in favor of the State may tend to convict a defendant not on the State's evidence but on the defendant's failure to produce evidence, thereby eroding the presumption of innocence promised by the constitution. See Dent v. United States, 404 A.2d 165, 171 (D.C. 1979) (holding that a missing witness inference "creates evidence from nonevidence, [and] may add a fictitious weight to one side of the case . . . by giving the missing witness undeserved significance").

Because of its many pitfalls, courts have only sparingly and with great caution permitted missing witness inferences to be drawn against criminal defendants. See Velasquez, supra, 391 N.J. Super. at 306-07. Here, in approaching the matter with the trepidation it deserved, the trial judge decided not to instruct the jury that it could draw such an inference. So far so good. But the issue had seeped into the trial through the assistant prosecutor's insinuation, in both his examination of defense witnesses and in his summation, that defendant or members of his family had failed to make the same effort to bring John-John from Washington to testify that they had made in haling Efrain Reyes from Puerto Rico. In my view, this circumstance required that the trial judge instruct the jury that it could not draw an inference against defendant based on John-John's absence from the trial; indeed, I believe State v. McGraw, 129 N.J. 68 (1992) required such a cautionary instruction.

In McGraw, the defendant was convicted of aggravated assault arising from his participation in a brawl that involved numerous other individuals. During this melee, one combatant suffered severe knife wounds. Although the defendant acknowledged his involvement in the brawl, he denied using a knife or stabbing the victim, and testified instead that he had seen his brother, Larry, with a knife immediately after the fight. Id. at 71. He also testified that Larry "had started crying and hugging defendant when, after the tussle, he realized that defendant had been cut," and that "Larry later told him that he would not 'let [defendant] take the rap for nothing.'" Ibid. In addition, the defendant testified that "[i]f it comes down to it," Larry would tell the jury "what happened"; when questioned further about whether Larry's story would "be different from [defendant's] story," defendant testified that "[i]t shouldn't be." Id. at 72-73.

Larry, however, later chose to invoke his Fifth Amendment right not to incriminate himself rather than testify. The defendant argued that Larry should have been called to the witness stand and there invoke his Fifth Amendment rights in front of the jury. The Court rejected this argument, but agreed with the defendant that he was entitled to a jury instruction to combat the possibility that the jury would view Larry's absence as evidence of the defendant's guilt:

Defendant also contends that the trial court erred in failing explicitly to instruct the jury that it should draw no inference unfavorable to defendant from Larry's non-participation in the trial. We agree that even in the absence of a specific request and of an improper comment in summation, the court ordinarily should administer an instruction foreclosing the drawing of any inference whatsoever. There may of course be circumstances under which a trial court could properly exercise its discretion to omit a "missing witness" instruction even when the foregoing conditions have been met, but we believe those circumstances will be rare indeed.

[Id. at 77 (emphasis added).]

In my view, the trial judge should have adhered to McGraw and cautioned the jury that it could not draw an inference against defendant based on John-John's absence from the proceedings.

The "missing witness inference" was based upon dictum in Graves v. United States, 150 U.S. 118, 121, 14 S. Ct. 40, 41, 37 L. Ed. 1021, 1023 (1893), which suggested that a party's failure to call a witness may generate a "natural" inference that the witness would have given testimony unfavorable to that party. But, as experience has taught, it is not always logical or natural to draw such an inference, particularly in light of "modern discovery and other disclosure procedures," which "serve[] to diminish both its justification and the need for the inference." McCormick on Evidence, 264 (Cleary ed., 6th ed. 2006). Indeed, a party may have various reasons for choosing not to call a witness having nothing to do with whether that witness's testimony would be damaging:

Every experienced trial lawyer knows that the decision to call a witness often turns on factors which have little to do with the actual content of his testimony. Consider-ations of cumulation and jury fatigue may preclude calling a witness who is entirely helpful; calculations that a witness may help a lot but hurt a little may compel restraint when counsel believes that his burden is already met. Then, too, questions of demeanor and credibility, hostility, and the like may influence the [party] not to produce a witness whose testimony might be entirely harmful to the [other party].

[United States v. Busic, 587 F.2d 577, 586 (3d Cir. 1978), rev'd on other grounds, 446 U.S. 398, 100 S. Ct. 1747, 64 L. Ed. 2d 381 (1980).]

Considering the conflicting statements John-John gave to the police, both sides had reason to refrain from calling John-John as a witness. Consequently, it was inappropriate for the State to suggest to the jury, either directly or by insinuation, that the natural tendency to call John-John as a witness was overridden by fear of its content, and was a factor the jury could consider in determining defendant's guilt.

I also share the view of courts in other jurisdictions, which have concluded, as held in State v. Tahair, 772 A.2d 1079, 1080 (Vt. 2001), that the "'missing witness' instruction has outlived its usefulness in criminal trials, and should be abandoned." See also State v. Malave, 737 A.2d 442, 447 (Conn. 1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000); State v. Brewer, 505 A.2d 774, 777 (Me. 1985); State v. Caron, 218 N.W.2d 197, 200 (Minn. 1974); Henderson v. State, 367 So. 2d 1366, 1368 (Miss. 1979); State v. Jefferson, 353 A.2d 190, 199 (R.I. 1976); State v. Hammond, 242 S.E.2d 411, 416 (S.C. 1978); Russell v. Commonwealth, 223 S.E.2d 877, 879 (Va. 1976); State v. James, 563 S.E.2d 797, 800-02 (W. Va. 2002). Ultimately, the inference has a "potential [for] inaccuracy and unfairness," Robert H. Stier, Revisiting the Missing Witness Inference -- Quieting the Loud Voice from the Empty Chair, 44 Md. L. Rev. 137, 151 (1985), and "weaken[s], if not neutralize[s]" the presumption of innocence, Russell, supra, 223 S.E.2d at 837. These core values are not entirely vindicated by a judge's refusal to advise the jury that an adverse inference may be drawn against an accused. Instead, a trial judge must do more. The judge must, as McGraw held, affirmatively direct the jury not draw any significance from the witness's non-appearance.

In this regard, it seems to me helpful to consider that trial judges are required to provide "clear and correct jury instructions," State v. Cooper, 151 N.J. 326, 363 (1997), which serve as "a road map to guide the jury," State v. Martin, 119 N.J. 2, 15 (1990). To give no instruction about a missing witness -- as here -- is to provide no guidance on the point, permitting the jury to "take a wrong turn in its deliberations." Ibid. See also State v. Condon, 391 N.J. Super. 609, 614 (App. Div.), certif. denied, 192 N.J. 74 (2007). Here, the jury heard the assistant prosecutor's insinuations but was left without any guidance from the judge as to how to evaluate those insinuations and John-John's absence. No doubt, a fair argument may be made that the jury could have intuited from the judge's general instructions concerning the State's burden of proof that it could not determine defendant's guilt based upon what it believed a witness, who did not testify, may have said if he had testified. But in the vacuum created by the lack of any instruction, the rudderless jury could have also assumed that which the Court in Graves found to be "natural" -- that the failure of defendant's son to appear at trial suggested that defendant feared his testimony. Tahair, supra, 772 A.2d at 1085. Indeed, the jury in the matter at hand may have been pursuing this line of thinking when, during deliberations, the jury asked the judge for a readback of Lillian Roman's testimony about "when was the last time she saw John-John."

For these reasons, I would hold that it was not enough for the trial judge to refuse the State's request for an instruction that an adverse inference could be drawn against defendant; the judge should have entirely laid the matter to rest -- particularly once the jury sought a readback of Lillian Roman's testimony -- by expressly instructing the jury that no such inference could be drawn. Again, this appears to me to be the express holding of our Supreme Court in McGraw. Thus, I would find that the trial judge erred in failing to sua sponte instruct the jury on this point.

I would tend to view the absence of such an instruction as prejudicial. However, I also recognize that in a circumstance in which it was far more likely that the jury drew an adverse inference based on a missing witness, our Supreme Court found a defendant's failure to request such an instruction to constitute harmless error. McGraw, supra, 129 N.J. at 77-78. Although I believe the trial judge here erred in failing to sua sponte instruct the jury that an adverse inference should not be drawn based on John-John's absence, I recognize that McGraw's view of such an error as harmless requires our rejection of defendant's argument that a new trial is required. Accordingly, I agree with my colleagues that the judgment of conviction must be affirmed.

Judge Stern joins in this concurring opinion.

 

No Early Release Act, N.J.S.A. 2C:43-7.2.

Several days after the murder, Williams turned over to an investigator defendant's key and wallet, which no longer contained $300.

State v. Clawans, 38 N.J. 162 (1962).

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2363-64, 147 L. Ed. 2d 435, 455 (2000).

The shooting occurred on November 15, 2001, and the trial commenced on April 6, 2004. The record does not clearly reveal when, during this interval, John-John returned to Washington.

There was testimony that John-John handed to defendant the weapon used to shoot the victim. As the majority has observed, after the incident John-John gave a statement to the police that was exculpatory to defendant, but he later gave another statement inculpating defendant as the shooter.

See e.g. Taylor v. Kentucky, 436 U.S. 478, 488-89, 98 S. Ct. 1930, 1936, 56 L. Ed. 2d 468, 477 (1978) (finding error in the trial court's abdicating to the argument of counsel the explanation of the definition and scope of the presumption of innocence, and holding that "[i]t was the duty of the court to safeguard [the accused's] rights, a duty only it could have performed reliably"); State v. Butler, 27 N.J. 560, 595 (1958) (holding that a failure to instruct a jury about essential matters "assume[s] that jurors are educated in the law -- an assumption which no one would undertake to justify").

Our courts have repeatedly emphasized the particular obligation of a trial judge to provide clarifying instructions when an issue is raised by a jury during deliberations. See State v. Savage, 172 N.J. 374, 394 (2002); State v. Middleton, 299 N.J. Super. 22, 30-31 (App. Div. 1997); State v. Graham, 285 N.J. Super. 337, 342 (App. Div. 1995); State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994); State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984).

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