STATE OF NEW JERSEY v. VICTOR J. MARRERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2951-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VICTOR J. MARRERO,

Defendant-Appellant.

__________________________________________________

May 27, 2011

 

Submitted May 3, 2011 - Decided

 

Before Judges Espinosa and Skillman.

 

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment

No. 07-07-1630.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

 

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack R. Martin, Assistant County Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Defendant was indicted together with codefendants Robin Perez and Anita Pratts for purposeful or knowing murder, in violation of N.J.S.A. 2C:11-3(a)(1) and (2); conspiracy to commit homicide and/or aggravated assault, in violation of N.J.S.A. 2C:5-2, N.J.S.A. 2C:11-3(a) and/or N.J.S.A. 2C:12-1(b)(1); third degree hindering apprehension, in violation of N.J.S.A. 2C:29-3(b)(1); and two counts of fourth degree tampering with physical evidence, in violation of N.J.S.A. 2C:28-6(1); and various other offenses. Defendant was tried separately from the codefendants, who pled guilty pursuant to plea bargains discussed later in this opinion. A jury found defendant guilty of all charges. The trial court sentenced defendant to a fifty-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for murder; a concurrent three-year term for hindering apprehension; and concurrent one-year terms for the two counts of tampering with physical evidence. The court merged defendant's other convictions, including the conviction for conspiracy.

Roberto Feliciano, the victim, was a professional boxer who trained younger athletes and resided in Atlantic City with his wife, codefendant Anita Pratts, and her three children, two daughters and a son. At the time of the murder, Pratt's older daughter was dating Jean Carlos Salazar, and her younger daughter was dating John McKoly Palomo-Oterio.

Defendant resided with Palomo-Oterio, who was his second cousin and friend. Codefendant Perez was also friendly with Palomo-Oterio. However, according to the State's evidence, Perez disliked Feliciano and, after Pratts told him that Feliciano had raped her younger daughter, Perez became angry and stated that "he wanted to hurt" Feliciano.

On May 9, 2006, Pratts let Perez and defendant into the house that she resided in with Feliciano before she went to work. Perez and defendant hid inside the house in a bedroom until Feliciano returned home after driving Pratts to work. After Feliciano entered the residence, Perez and defendant had a violent confrontation with him. During that confrontation, defendant struck Feliciano several times on the head and body with a pipe and Perez inflicted forty-four stab wounds with a knife, which caused Feliciano's death.

Although the defense did not dispute that Perez and defendant were the participants in the violent confrontation that resulted in Feliciano's death, there was conflicting evidence concerning their purpose in going to Feliciano's residence on the day of the murder.

The State presented testimony by Palomo-Oterio and Salazar that there had been a discussion in Palomo-Oterio's bedroom the night before the murder in which Perez stated in the presence of defendant and Pratts that he was going to kill Feliciano, and that defendant had been with Perez when he left Palomo-Oterio's house early the next morning to go to Feliciano's house.

According to Palomo-Oterio, Perez said during the discussion in his bedroom that he was going to kill Feliciano by "stabbing him" and brandished the knife he was going to use for this purpose. After this conversation, Palomo-Oterio saw Perez and defendant leave his house together around 4 a.m. The following morning, defendant called him on the telephone and said, "they killed him." Defendant also asked Palomo-Oterio to bring a change of clothing for him to Bally's, where Pratts worked, which Palomo-Oterio did.

Salazar, who was also in Palomo-Oterio's bedroom the night before the murder, corroborated Palomo-Oterio's testimony that Perez said he was going to kill Feliciano and that defendant was present when this was discussed. According to Salazar, Perez asked him during this discussion to help kill Feliciano, but he refused.

The State's proofs also included a lengthy videotaped statement defendant gave to the police the day after the murder, which was played for the jury, in which defendant admitted his involvement in the murder.

The defense version of the killing, which was presented primarily through the testimony of Perez and defendant, was that Perez's purpose in going to Feliciano's home was not to kill or inflict serious bodily injury upon him but instead to assault him, and defendant only accompanied Perez to talk him out of inflicting any harm upon Feliciano.

Perez testified that he asked defendant to accompany him to Feliciano's house to pick up her daughter's personal belongings, who had recently moved out of the house. However, after they arrived at the house, Perez told him that his real purpose in going to Feliciano's house was "to scare him." According to Perez, when Feliciano returned to the house after driving Pratts to work, he and defendant remained in a back bedroom while Feliciano made coffee and talked on a cell phone. Feliciano then walked into the bedroom and, upon seeing the two men, lifted his coffee cup to attack them. In reaction, defendant hit Feliciano with a pipe that Perez had picked up on the way to the house. Feliciano ran to the front door and grabbed the handle, but then turned around "willing to fight." Perez saw Feliciano reach for a knife on the wall next to him, and defendant again hit him with the pipe. Feliciano attempted to pick up a rocking chair and throw it at Perez, but Perez held the chair down. Perez testified that he then blacked out, but remembers stabbing the victim multiple times and finally stopping when he realized what he was doing.

Although Perez testified on direct examination that defendant was only an acquaintance, he admitted on cross-examination that defendant had been with him when he purchased the knife used in the murder. In addition, although Perez claimed on direct examination that he had not seen defendant hit Feliciano on the head with the pipe, he admitted on cross-examination that defendant had hit Feliciano on the head multiple times, including after Feliciano had already been stabbed and was lying helpless on the ground.

Defendant testified that when Perez was swinging the knife in Palomo-Oterio's bedroom the night before the murder and talking about hurting or killing Feliciano, he told him, "don't do it." He also testified that when Perez awoke him early the next morning, he thought they were going to Perez's house, but Perez later told him they were actually going to Feliciano's house. According to defendant, he objected, saying "[d]on't go there . . . . Let the police do their business. . . . It's not your job to do that."

When they arrived at Feliciano's house, defendant testified that Pratts told Perez not to do anything, that she was trying to inform the police about Feliciano's alleged rape of one of her daughters. According to defendant, after they received the call from Pratts that Feliciano was on his way back to the house, he tried to persuade Perez to leave the house and told him he did not want to be there. Defendant testified that when Feliciano returned home, he got scared. Defendant said that when Feliciano ran to the front door, he followed, hoping he could also get out of the house. However, when Feliciano did not leave and instead reached for a knife on the wall, defendant hit him on the hand and head with the pipe. Feliciano then began fighting and kicked defendant in the stomach, prompting defendant to hit Feliciano in the legs and arms with the pipe. Defendant estimated that he hit Feliciano with the pipe ten to fifteen times. On cross-examination, defendant also admitted to wearing a glove during the attack.

Based on this evidence, the jury found defendant guilty of Feliciano's murder.

On appeal, the Public Defender has presented the following arguments on defendant's behalf:

POINT I:

 

THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE REQUEST THAT THE JURY BE INFORMED OF THE NATURE OF THE CO-DEFENDANTS' CONVICTIONS AND SENTENCES.

POINT II:

 

THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS THE STATE FAILED TO PROVE THAT A CONSPIRACY EXISTED.

 

POINT III:

 

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

 

In addition, defendant has submitted a pro se supplemental brief which presents the following arguments:

POINT I:

 

DEFENDANT'S RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT WHEN THEY FAILED TO EXCLUDE THE EVIDENCE ADMITTED AS AUDIO, VIDEO AND TRANSCRIBED FROM DEFENDANT'S OUT-OF-COURT STATEMENT CONSTRUED AS CONFESSIONS WHICH WERE INADMISSIBLE EVIDENCE DUE TO BEING OBTAINED PRIOR TO DISCLOSING THAT HE WAS A SUSPECT NOR EVER BEING CHARGED LAWFULLY AND FAILURE TO VERIFY THAT IN FACT THE OUT-OF-COURT STATEMENTS, VIDEO, PICTURES, AUDIO, AND TRANSCRIPT WERE AUTHENTICATED WHICH HAVE FURTHER VIOLATED DEFENDANT'S RIGHTS UNDER THE FOURTH AND FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION (Not Raised Below).

 

POINT II:

 

DEFENDANT'S RIGHT TO DUE PROCESS AND EQUAL PROTECTION OF THE LAWS AS GUARANTEED BY

THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARAGRAPH 1, AND 22 OF NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT BY FAILING TO SEQUESTER ALL STATE WITNESSES (Not Raised Below).

 

POINT III:

 

DEFENDANT-APPELLANT'S RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF NEW JERSEY CONSTITUTION, WERE VIOLATED WHEN TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE LAW OF THE IDENTIFICATION OF DEFENDANT, VICTOR J. MARRERO (Not Raised Below).

 

POINT IV:

 

DEFENDANT-APPELLANT'S RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF NEW JERSEY CONSTITUTION, WERE VIOLATED WHEN THE STATE FAILED TO PROVIDE THE ELEMENTAL FINDING AND THE CERTIFICATES FROM THE LABORATORIES, THE RESULT OF THE EXPERT TESTIMONIES EXCLUDED THE DEFENDANT (Not Raised Below).

 

POINT V:

 

DEFENDANT-APPELLANT'S RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION, WERE VIOLATED WHEN THE TRIAL COURT VIOLATED DEFENDANT'S FIFTH AMENDMENT RIGHTS BY FAILING AND OMITTING TO GIVE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT BY PLACING THE DEFENDANT UNDER DURESS THEREBY PRESSURED THAT HE HAD AN OBLIGATION TO TESTIFY THEREBY VIOLATING HIS STATE AND FEDERAL RIGHT TO REMAIN SILENT (Not Raised Below).

 

POINT VI:

 

DEFENDANT-APPELLANT'S RIGHTS WERE VIOLATED UNDER THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND ARTICLE I, PARAGRAPH 1, OF THE NEW JERSEY CONSTITUTION, BY THE IMPROPER ADMISSION OF HEARSAY EVIDENCE OF STATE WITNESSES WITHOUT FIRST-HAND KNOWLEDGE OF THE FACTS VIOLATED N.J.R.E. 602, N.J.R.E. 803 AND N.J.R.E. 608 (Not Raised Below).

 

POINT VII:

 

DEFENDANT-APPELLANT'S RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF NEW JERSEY CONSTITUTION, WERE VIOLATED WHEN THE TRIAL COURT PREJUDICIAL ACCOMPLICE LIABILITY CHARGE MANDATES THAT THE DEFENDANT'S MURDER CONVICTION BE REVERSED, THE THEORY OF ACCOMPLICE LIABILITY DID NOT PRESENT THE PROOF OF CLAIM AND FURTHER DID NOT ENUNCIATE THE SHARED INTENT REQUIREMENT, NOR DID THE TRIAL COURT ADEQUATELY REPEAT THE CHARGE OF ACCOMPLICE LIABILITY IN THE CONTENT OF SELF DEFENSE A LESSER CHARGE (Not Raised Below).

 

POINT VIII:

 

DEFENDANT-APPELLANT'S RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF NEW JERSEY CONSTITUTION, WERE VIOLATED WHEN THE TRIAL COURT IGNORED THE FATAL DEFECTS IN THE STATE GOVERNMENT'S CHARGING INSTRUMENTS (Not Raised Below).

 

POINT IX:

 

DEFENDANT-APPELLANT'S RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1, OF NEW JERSEY CONSTITUTION, WERE VIOLATED WHEN THE TRIAL COURT IGNORED THAT THE STATE GOVERNMENT LACKED STATE LEGISLATIVE, TERRITORIAL OR ADMIRALTY JURISDICTION OVER THE LOCUS QUO (Not Raised Below).

 

POINT X:

 

DEFENDANT-APPELLANT'S RIGHTS WERE VIOLATED UNDER THE FOURTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, AND ARTICLE I, PARAGRAPH 1 AND 7 OF NEW JERSEY CONSTITUTION, WHEN THE TRIAL COURT PROCEEDED IN THE CAUSE WITHOUT PROPER JURISDICTION, AND THE STATE OF NEW JERSEY FAILED TO APPEAR AND HAS NOT STATED A CLAIM UPON WHICH RELIEF CAN BE GRANTED (Not Raised Below).

 

We reject the part of the first point in defendant's pro se supplemental brief which argues that the trial court erred in denying his motion to suppress the confession he gave to the police the day after the murder substantially for the reasons set forth in Judge DeLury's November 13, 2008 oral opinion denying that motion. Defendant's other arguments, except for the arguments relating to his sentence, are clearly without merit. R. 2:11-3(e)(2). However, before addressing defendant's sentence, we consider it appropriate to discuss briefly the arguments presented under the first two points of the Public Defender's brief.

I.

 

 

Defendant argues that the trial court erred in denying his request for the jury to be informed that codefendants Pratts and Perez had pled guilty pursuant to plea bargains to aggravated manslaughter and the sentences imposed upon them pursuant to those plea bargains.

Evidence Rule 403 provides:

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

 

A trial court's exclusion of evidence under this Rule will be upheld on appeal unless it constituted a palpable abuse of discretion. State v. Carter, 91 N.J. 86, 106 (1982).

We question whether evidence of the codefendants' plea bargains and sentences had any relevancy at all with respect to defendant's guilt of murder and the other offenses with which he was charged, and even if such evidence could be found to be relevant, any marginal relevancy would have been "substantially outweighed by the risk of . . . undue prejudice [to the State], confusion of issues, [and] misleading the jury," N.J.R.E. 403(a), and of "undue delay" and "waste of time," N.J.R.E. 403(b). Anyone actively involved in the criminal justice system is well aware that prosecutors frequently enter into plea bargains under which they accept guilty pleas to lesser charges than the prosecutor actually believes the defendant to be guilty of for various reasons, including weaknesses in the State's proofs and mitigating circumstances relating to a particular defendant. However, the lay members of a jury very well may not possess a comparable understanding of the plea bargaining process. Consequently, if defendant had been allowed to introduce evidence that the prosecutor had agreed to allow Pratts and Perez to plead guilty to the lesser charge of aggravated manslaughter, the jury may have inferred that they were only guilty of that lesser charge and therefore defendant also must be guilty of only that lesser charge. To prevent the jury from drawing this incorrect inference, the State would have been forced to present evidence regarding the plea bargaining process and whatever circumstances led the prosecutor to agree to allowing Pratts and Perez to plead guilty to the lesser charge of aggravated manslaughter.1 This would have consumed substantial court time, contrary to the policy expressed in N.J.R.E. 403(b), and would have distracted the jury from the real issue, which was whether the evidence presented at trial was sufficient to establish that defendant was guilty of murder, contrary to the policy expressed in N.J.R.E. 403(a). Therefore, the trial court did not abuse its discretion in denying defendant's request to present evidence of the plea bargains his codefendants had entered into with the State.

II.

 

 

Defendant also argues that the trial court erred in denying his motion to dismiss the conspiracy charge against him because there was insufficient evidence to support that charge. However, defendant's conviction for conspiracy was merged into his conviction for murder, and we are affirming defendant's conviction for murder. Therefore, there is no need to consider the sufficiency of the evidence to support that conviction. See State v. Walker, 322 N.J. Super. 535, 555-56 (App. Div. 1999); State v. Pennington, 273 N.J. Super. 289, 295-96 (App. Div.), certif. denied, 137 N.J. 313 (1994).

In any event, the evidence was sufficient to support conviction for conspiracy. That evidence consisted of defendant's admission that he was with Perez when he purchased the knife used in the murder, defendant's presence in Palomo-Oterio's bedroom when Perez discussed his plan to kill Feliciano, defendant's accompanying Perez when he went to Feliciano's house, defendant hiding with Perez in Feliciano's bedroom until he returned after driving Pratts to work, and defendant arming himself with the pipe that Perez brought to the house to assist in the lethal assault upon Feliciano.

III.

 

 

In sentencing defendant to a fifty-year term, subject to an 85% period of parole ineligibility under NERA for murder, the trial court found four aggravating sentencing factors: (1) "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner," N.J.S.A. 2C:44-1(a)(1); (2) "[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance," N.J.S.A. 2C:44-1(a)(2); (3) "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); and (9) "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(9). The court found mitigating sentencing factor (7), that "the defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense," N.J.S.A. 2C:44-1(b)(7), but stated, without explanation, that this factor was entitled to "very little weight." Defendant argues that the sentence the court imposed upon him based on these findings of aggravating and mitigating factors was excessive.

We conclude that the trial court improperly identified aggravating sentencing factor two -- "the gravity and seriousness of the harm inflicted upon the victim," N.J.S.A. 2C:44-1(a)(2). In applying aggravating factor (2), the court must rely on more than simply the death of the victim where death is an element of the offense itself. State v. Carey, 168 N.J. 413, 425 (2001). In determining the applicability of this sentencing factor, the court may consider "whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance." N.J.S.A. 2C:44-1(a)(2). Thus, the section is directed at any particular vulnerability of the victim, including "advanced age" or "extreme youth," ibid., rather than the "nature and circumstances of the offense," which is the focus of aggravating factor one, N.J.S.A. 2C:44-1(c)(1). Feliciano had no such particular vulnerability. Indeed, he was a former professional boxer in his mid-40s who apparently was in good physical condition.

We also conclude that the trial court erred in giving "very little weight" to defendant's absence of a criminal record. The presence or absence of a criminal record is ordinarily a weighty factor in sentencing. See State v. Toro, 229 N.J. Super. 215, 227-28 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989). The trial court did not identify any reason, and we do not perceive any reason, for failing to give defendant's lack of a criminal record significant weight in determining the appropriate length of his sentence for murder.

Accordingly, we affirm defendant's convictions. However, we vacate defendant's fifty-year sentence for murder and remand for resentencing in conformity with this opinion.

 

 

1 We note that Perez was a juvenile at the time of the murder while defendant was an adult. We also note that Pratts was not present at the time of the murder and that the evidence she had conspired with Perez and defendant to kill or cause serious bodily injury to Feliciano was not overwhelming.