STATE OF NEW JERSEY v. TULIO RAFAEL MENA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6270-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TULIO RAFAEL MENA, a/k/a

FELIX CHEVRES, a/k/a RICARDO

ROBLES,

Defendant-Appellant.

________________________________________________________________

Argued May 10, 2011 Decided June 30, 2011

 

Before Judges Wefing, Payne and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 96-05-724.

 

James S. Friedman argued the cause for appellant.

 

Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief).

PER CURIAM

Defendant Tulio Rafael Mena appeals his convictions arising from two 1995 gas station robberies on Route 4 in Paramus, which he committed while armed with an imitation handgun. He was eighteen years old at the time of the crimes. Defendant was a fugitive from his trial date in 1997 until his arrest in New York in 2008. His trial occurred in 2009.

On May 30, 1996, a Bergen County Grand Jury returned Indictment No. 96-05-724 charging defendant and Hector Alexis Bautista with three counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts one, three and five), and three counts of fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4e (counts two, four and six). By the time defendant ultimately was tried, the State was unable to locate the victim of the armed robbery charged in counts one and two, which occurred in Hasbrouck Heights, so the State dismissed those counts of the indictment prior to trial.

Defendant was convicted of all remaining counts, and on July 17, 2009, he was sentenced to fifteen years in custody on counts three and five, to run consecutively to each other, with seven and one-half years of parole ineligibility on each count. On counts four and six, defendant received concurrent eighteen-month terms of imprisonment. The court imposed the requisite financial penalties for each offense.

At trial, the gas station attendant from the first Route 4 robbery testified to the following facts about the night of July 19, 1995. At about 11 p.m., defendant and another man in a Ford Taurus pulled up to a gas pump and asked for five dollars worth of gas. Defendant then put a gun to the attendant's stomach, and both men demanded money, speaking in Spanish. The attendant gave defendant approximately two-hundred dollars, and the two men drove away. The attendant wrote down the license plate number of their car and then called 9-1-1.

A few minutes later, at another gas station approximately a mile and a-half away on Route 4, the attendant was held up at gunpoint by two men in a Taurus who spoke Spanish to each other. Although they pointed a gun at the attendant's chest, the attendant struggled with them, ran away and flagged down a police officer. Officer Albert Sodaro arrested defendant, who was in the driver's seat, and Bautista, who was in the front passenger seat. Sodaro patted the men down and removed a bundle of money from each man's pockets; approximately one hundred thirty dollars from defendant's pocket, and fifty-seven dollars from Bautista's. He searched the Taurus in the presence of Detective Sergeant Richard Cary1 and recovered a black steel pistol with the words "tradition" and "western cowboy" imprinted on it, which was protruding from the right front passenger seat. The police ultimately determined that the pistol was not a real gun.

At the police station, defendant waived his Miranda rights and gave an oral and written statement implicating himself and Bautista in the two robberies. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant did not testify at trial.

Bautista pleaded guilty to two robbery counts in the present indictment as well as an additional robbery count in another indictment in February 1998. Initially, Bautista was sentenced to three consecutive fifteen-year terms subject to five years of parole ineligibility on each. Bautista appealed his sentence, and after we remanded, he was re-sentenced to the same aggregate forty-five-year term with fifteen years of parole ineligibility. Bautista did not appeal this second sentencing, but filed three petitions for post-conviction relief (PCR), two of which were denied and the other withdrawn. Bautista appealed the denial of one of the PCR petitions, and we affirmed. State v. Bautista, No. A-1786-08 (App. Div. Dec. 8, 2009).

Defendant raises the following arguments on appeal:

POINT A.

 

MENA'S CONVICTIONS MUST BE VACATED BECAUSE OF THE MANNER IN WHICH HE WAS PREJUDICED BY THE TRIAL JUDGE'S REMARKS TO DEFENSE COUNSEL IN THE PRESENCE OF THE JURY

POINT B.

 

MENA'S CONVICTIONS MUST BE VACATED BECAUSE THE STATE'S FAILURE TO PRODUCE SODARO AT TRIAL VIOLATED HIS RIGHT TO CONFRONTATION, AS WELL AS THE RELEVANT RULES OF EVIDENCE

 

POINT C.

 

AT A MINIMUM, MENA MUST BE RESENTENCED BECAUSE HIS SENTENCE WAS GROSSLY DISPROPORTIONATE TO THE SENTENCE HIS CO-DEFENDANT RECEIVED FOR THE SAME SERIES OF OFFENSES

 

After reviewing the record in light of the contentions advanced on appeal, we affirm the convictions and remand for re-sentencing.

I

In Point A of his brief, defendant argues that the trial court's remarks to defense counsel during counsel's opening statement were unduly prejudicial. During defense counsel's opening statement, after he asserted that defendant's purported statement was not his, the court said: "What are you talking about that it's not his statement? Counsel, I - - I don't know where you're heading. This is completely - - completely wrong during an opening statement." Defense counsel responded saying, "[j]udge, at - - it has to do with what is eventually going to be introduced at trial and eventually it - - ." The court then cut defense counsel off and said "[t]he jury will make those determinations. They will determine the statement. Counsel, I - - if I have to instruct you one more time I may be looking at some type of sanction. Continue."

Although not raised by defendant in his appellate brief, when defense counsel mentioned in his opening argument that Officer Sodaro would not testify, the court instructed the jury to disregard that statement, stating: "[T]his is not an issue to be discussed in front of the jury, but this is wrong, and make no reference as to a witness that either side could have produced."

"The accusation of prejudicial actions by a trial judge is properly reviewable by an appellate court considering the entire transcript." State v. Zwillman, 112 N.J. Super. 6, 20 (App. Div. 1970), certif. denied, 157 N.J. 603 (1971). In reviewing the transcript, our "function is to ascertain the validity of the claim of prejudice, . . . not to reach a conclusion of harmless error because we may believe that the defendant in fact was guilty as charged." Ibid. (citations omitted). "A trial judge should never unfairly criticize or humiliate defense counsel or a defense witness." Id. at 21 (citation omitted). "Where it appears that the trial judge has turned the jury against the defendant by mistreating defendant's counsel in front of the jury, a new trial is required." Ibid.

Defendant relies primarily on State v. Tilghman, 385 N.J. Super. 45 (App. Div.), remanded on other grounds, 188 N.J. 269 (2006), for his argument. After reviewing the entire record, we did not reverse the defendant's convictions in Tilghman, finding that the time restrictions placed on both parties' opening statements did not deprive the defendant of a fair trial. We noted, however, that the judge's remarks to defense counsel to "'give these jurors a break'" and "'this isn't a filibuster'" "were entirely inappropriate." Id. at 59. We explained that "[s]uch official expressions of displeasure or disapproval may convey to the jury the belief that defense counsel was somehow acting improperly, disrespectfully, or deceptively; or worse yet, give the impression that the judge has an opinion of defendant's guilt or innocence." Ibid. (citing State v. Guido, 40 N.J. 191, 208 (1963)). "If there [is] a need to caution counsel against abusing courtroom protocol or rules of procedure, the admonition should . . . occur[] outside the presence of the jury." Tilghman, supra, 385 N.J. Super. at 62.

It is well-accepted that "[a] defendant is entitled to a fair trial but not a perfect one." State v. Martini, 131 N.J. 176, 321 (1993), overruled in part on other grounds by, State v. Wakefield, 190 N.J. 397, 423 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Incidental legal errors that do not prejudice a defendant or render the proceedings unfair do not require that the defendant receive a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954). If "the legal errors are of such magnitude as to prejudice the defendant's rights or, in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." Ibid. "The predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair." Wakefield, supra, 190 N.J. at 538.

The trial court should not have mentioned a possible sanction of defense counsel during his opening statement in front of the jury. The purpose of a prosecutor's opening statement is to present to the jury an outline or summary of what the State expects to prove. Prosecutors should limit themselves in their openings to what they will prove and not "anticipate" their "final argument." State v. Ernst, 32 N.J. 567, 577 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961); State v. Hipplewith, 33 N.J. 300, 309 (1960). Defense counsel, however, is free to argue to the jury in his opening, by way of summary of the anticipated differences in the proof, that his client did not make the incriminating statement that counsel knows will be introduced by the State or that a police officer involved in defendant's arrest will not be called by the State. Other than the two comments we have related, no other unwarranted remarks during the trial were made by the court in front of the jury.2

Additionally, the court stated in its final instructions to the jury: "I would like to commend counsel for the professional manner in which they have presented their respective cases and for their courtesy to the court and jury during the course of this trial." The court also stated:

In ruling, I have decided questions of law and whatever the ruling may have been in any particular instance you should understand that it was not an expression or opinion by me on the merits of the case. Neither should my other rulings on any other aspect of the trial be taken as favoring one side or the other. Each matter was decided on its own merits.

 

In light of the court's commendation and its instruction to the jury, we conclude that the court's comments during defense counsel's opening did not deprive defendant of a fair trial. These words were sufficient to counteract the two statements made by the court during defense counsel's opening statement.

 

II

Defendant argues, in Point B of his brief, that the State's failure to produce Officer Sodaro at trial violated his constitutional right to confrontation because Sodaro "played a leading role in the arrest of [defendant] and Bautista and the investigation of this case." Officer Sodaro was no longer in the police department at the time of trial. He had been convicted of criminal offenses in 2002, and his sentence prohibited him from holding any public job or office.

"The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of our State Constitution both provide a criminal defendant with the right to . . . be confronted with the witnesses against him." State v. Nyhammer, 197 N.J. 383, 411-12 (internal quotation marks and citations omitted), cert. denied, ___ U.S. ___, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). "The right of confrontation is an essential attribute of the right to a 'fair trial, requiring that a defendant have a fair opportunity to defend against the State's accusations.'" State v. Branch, 182 N.J. 338, 348 (2005) (quoting State v. Garron, 177 N.J. 147, 169 (2003), cert. denied, 540 U.S. 1160, 157 L. Ed. 2d 1204, 124 S. Ct. 1169 (2004)).

The State, however, was under no obligation to call Sodaro as a witness. Cary was present at the arrest, which is when the imitation gun was found, and Cary testified to what occurred at that time. Defendant does not point to any specific statements that Cary made during his testimony that were inadmissible nor any that defense counsel objected to at trial. Defendant was a fugitive for many years, resulting in the State's inability to locate the victim of a third robbery and the dismissal of those charges. Defendant is hardly in a position to complain, after evading capture for over a decade, that the State failed to call one of the police officers who was present at the scene of the arrest. Defendant suggests no way in which Sodaro's testimony would have benefited the defense.

III

Finally, in Point C of his brief, defendant claims that his sentence was disproportionate to the sentence Bautista received. Bautista pleaded guilty to three first-degree armed robberies; one in Maywood, New Jersey that defendant was not involved in, another in Hasbrouck Heights that defendant was charged with but that the State dismissed against defendant, and a third that he committed on Route 4 in Paramus with defendant on July 19, 1995, which was one of the two robberies that were the subject of defendant's trial. State v. Bautista, No. A-4454-98 (App. Div. Feb. 5, 2001) (slip op. at 1). Bautista was sentenced to three consecutive terms of fifteen years subject to five years of parole ineligibility on each. Ibid. Thus, his aggregate sentence was forty-five years subject to fifteen years of parole ineligibility. Ibid. When Bautista appealed his convictions, we were concerned about the length of the sentences imposed3 and also that the mandatory minimum sentences required by the Graves Act, N.J.S.A. 2C:43-6c, should not have been applied to these robberies because

a toy gun, while it elevates a robbery to first-degree, cannot be the premise of a Graves Act sentence. See, e.g., State v. Austin, 335 N.J. Super. 486, 490-491 (App. Div. 2000). The parole ineligibility periods imposed, therefore, were discretionary with the court pursuant to N.J.S.A. 2C:43-6b.

 

[Id. at 5.]

 

Citing State v. Kruse, 105 N.J. 354 (1987), we also expressed concern that the judge sentenced Bautista to a presumptive term4 of fifteen years on each robbery, thereby indicating that the aggravating factors and mitigating factors were balanced, and yet gave a discretionary mandatory minimum term, which would indicate that the aggravating factors clearly and substantially outweighed the mitigating factors. We also found that the two robberies that Bautista committed on July 19, 1995, "may be viewed as a spree, that is, as one ongoing criminal transaction, warranting the concurrency of those two sentences with the sentence for the third consecutive thereto." Id. at 5-6. We remanded for a reconsideration of the sentence. Finding no mitigating factors, and that Bautista committed two robberies while on bail for a third robbery, the trial judge imposed the same three consecutive sentences on October 15, 2009, after which Bautista did not appeal.5 See N.J.S.A. 2C:44-5h (establishing a presumption of a consecutive sentence for a crime committed while on bail for a pending offense). Defendant argues that because the two robberies for which he was convicted were committed in the same town on the same date only minutes apart, they constitute a "spree" and he should have received concurrent sentences.

In determining the appropriate sentence to be imposed on a convicted individual, the sentencing judge must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); Kruse, supra, 105 N.J. at 358. If a sentencing judge properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). If a judge adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

In State v. Bieniek, 200 N.J. 601 (2010), the Supreme Court reminded appellate judges to avoid substituting their preferences for legally compliant sentencing actions by the Law Division:

Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence.

 

[Id. at 612.]

In the present matter, the sentencing court found aggravating factor number one, the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1). The court explained that the psychological injury to the gas station attendant warranted this factor, finding the offense "horrific." Indeed, an armed robbery may well be described as "horrific." The court did not, however, sufficiently explain how these armed robberies were "committed in an especially heinous, cruel or depraved manner," especially in light of the fact that the weapon used was not real. N.J.S.A. 2C:44-1a(1). We are unable to discern what aspect of these armed robberies the court found particularly serious. Aggravating factor one relates to the seriousness of the current offense, and defendant's use of a weapon cannot be used as an aggravating factor when sentencing him to a first-degree crime. State v. Pillot, 115 N.J. 558, 564, 577 (1989) (finding it improper to apply aggravating factor one, based on a defendant's use of a weapon, when sentencing the defendant convicted of armed robbery in the first degree).

The court also found aggravating factor two, the gravity and seriousness of the harm inflicted on the victim, N.J.S.A. 2C:44-1a(2), because "[s]eriousness of harm is not only physical, it's mental" and one victim "really had to convince himself to go back in order to be able to take care of his family. He didn't want to work the night shift, he was frightened, and I understand that." The court did not articulate a finding that defendant used excessive force in committing the robbery. See State v. McBride, 211 N.J. Super. 699 (App. Div. 1986) (finding aggravating factors one and two where the defendant thief, a six-foot-tall, two-hundred-fifty-pound amateur boxer, beat a fifty-six year-old victim "nearly senseless," breaking one of his teeth).

Although psychological harm may justify the court's finding aggravating factor two, State v. Kromphold, 162 N.J. 345, 357 (2000), the court's explanation that one victim was hesitant to return to work is not convincing evidence of the existence of this factor. The court did not find either victim particularly vulnerable in terms of age or physical disability nor did he find that defendant placed the victims in a particularly vulnerable position during the robberies. See, e.g., State v. O'Donnell, 117 N.J. 210, 219 (1989) (finding a defendant police officer harmed a particularly vulnerable victim when the officer bound and shackled the arrestee before suspending him in mid-air and beating him).

The court also found aggravating factors three, the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3), six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6), and nine, the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). Defendant had no convictions prior to these robberies. Subsequently, he participated in an offense in 1998 in Texas involving drug money for which he received probation, and two minor convictions in New York in 2008; drunk driving for which he received treatment and a license suspension, and a minor drug conviction for which he received a conditional discharge. Here again, the court did not sufficiently explain the reasons he found these factors in light of defendant's minor, non-violent subsequent record. We recognize that although the court found these aggravating factors, it did not increase defendant's sentence as a result, thus implicitly acknowledging the lack of support in the record for these factors.

The court also found mitigating factor eleven, N.J.S.A. 2C:44-1b(11), the imprisonment of defendant would entail excessive hardship to himself or dependents based on the fact that defendant has a family and a common law wife who was pregnant with his child.

The court sentenced defendant to consecutive sentences on the two robberies, reasoning that they involved separate gas stations, separate victims and separate times and places. The court commented that it "would be absolutely ludicrous" to impose only one penalty for all criminal activity committed in the same time period. The court said:

It should be loud and clear to all people that if you're going to participate in multiple robberies of this nature that you're not going to get a concurrent sentence, you're go[ing to] get a consecutive sentence and it's going to be meaningful.

 

When a defendant receives multiple sentences of imprisonment for more than one offense, they may run concurrently or consecutively "as the court determines at the time of sentence." N.J.S.A. 2C:44-5a. Although N.J.S.A. 2C:44-5a does not specify when consecutive or concurrent sentences are appropriate, the Court has provided guidelines. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

The Court has held that when trial courts impose "either a concurrent or consecutive sentence, '[t]he focus should be on the fairness of the overall sentence, and [the trial courts] should articulate their reasons for their decisions with specific reference to the Yarbough factors.'" Abdullah, supra, 184 N.J. at 515 (internal quotation marks and citations omitted). The Court further held that "'a statement of reasons is a necessary prerequisite for adequate appellate review of sentencing decisions . . . [in order to] determine whether the trial court's imposition of consecutive sentences was a valid exercise of discretion.'" Ibid. (quoting State v. Miller, 108 N.J. 112, 122 (1987)); see also State v. Miller, 205 N.J. 109, 128-29 (2011).

The applicable Yarbough factors are:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;
 
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
 
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;
 
(b) the crimes involved separate acts of violence or threats of violence;
 
(c) the crimes were committed at different times or separate places . . .;
 
(d) any of the crimes involved multiple victims;
 
(e) the convictions for which the sentences are to be imposed are numerous;

 

(4) there should be no double counting of aggravating factors;

 

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense;
 

. . . .

[Yarbough, supra, 100 N.J. at 643-44 (internal footnotes omitted).]

 

In determining whether or not a consecutive sentence is appropriate, a reviewing court must consider the reasons provided by the trial court pursuant to Yarbough, supra, 100 N.J. at 630. State v. Gallagher, 286 N.J. Super. 1, 22 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996). Generally, if the trial court does not provide a reviewing court with express reasons for imposing consecutive sentences, a remand is necessary. Gallagher, supra, 286 N.J. Super. at 22. Consecutive sentences are appropriate where there are multiple victims. Carey, supra, 168 N.J. at 429-30. The trial court had the discretion to reject defendant's argument that the two robberies were a "spree," which called for concurrent terms, explaining that multiple victims require consecutive sentencing for reasons of general deterrence.

The court gave no reason for imposing a mandatory minimum term. The initial judgment of conviction indicated that defendant was sentenced under the Graves Act. N.J.S.A. 2C:43-6c. An amended judgment was then prepared the following month correctly indicating that the Graves Act did not apply, but indicating no other reasons for the imposition of a mandatory minimum term. Before imposing a discretionary mandatory minimum, a court must be "clearly convinced that the aggravating factors substantially outweigh the mitigating factors." N.J.S.A. 2C:43-6b.

We therefore remand for the court to hold another sentencing hearing to reconsider defendant's sentence and explain in more detail the reasons for finding any aggravating factors.6 If the court re-imposes a discretionary mandatory minimum term, the court should explain how such a term is appropriate in light of the overall mid-point sentence imposed. See Kruse, supra, 105 N.J. at 363.

Additionally, although not raised by defendant, the State concedes that the counts charging possession of an imitation firearm for an unlawful purpose, four and six, should have been merged into the armed robbery counts, three and five. State v. Romero, 191 N.J. 59, 79 (2007) ("Merger must occur 'when the only unlawful purpose in possessing the [weapon] is to use it to commit the substantive offense.'" (citation omitted)). We therefore also remand for the court to merge count four into count three and count six into count five.

Affirmed in part, reversed and remanded in part.

1 By the time of trial, almost fourteen years after the crimes, Cary held the title of Chief of Police.

2 Defendant also complains of another heated exchange between defense counsel and the court. Contrary to appellate counsel's representation, however, the other exchange did not occur in the presence of the jury, and therefore we do not consider it.

3 Our concern stemmed in part from the disparity between the sentence of eight years with a mandatory minimum of six years that Bautista was offered as a plea agreement on condition he appear for sentencing, and the forty-five-year sentence with a mandatory minimum of fifteen years that he received after not appearing for sentencing.

4 Our opinion was written prior to State v. Natale, 184 N.J. 458 (2005), where the Court eliminated presumptive sentences.

5 After Bautista's subsequent appeal of the denial of his post-conviction relief petition, we found that any excessive sentence argument should have been raised on direct appeal. R. 3:22-4.

6 Because this sentence was not illegal, a longer sentence may not be imposed. See State v. Gould, 352 N.J. Super. 313, 317-18 (App. Div. 2002); see also State v. Thomas, 195 N.J. 431, 435 (2008).