STATE OF NEW JERSEY v. JORGE QUINTANILLA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3388-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE QUINTANILLA,

Defendant-Appellant.

___________________________

February 27, 2012

 

Submitted January 23, 2012 - Decided

 

Before Judges Grall and Alvarez.

 

On appeal from Superior Court of New

Jersey, Law Division, Hudson County,

Indictment No. 08-06-1040.

 

Joseph E. Krakora, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, on the brief).

 

Edward J. De Fazio, Hudson County

Prosecutor, attorney for respondent

(Catherine Healy, Assistant Prosecutor,

on the brief).

PER CURIAM

A jury found defendant Jorge Quintanilla guilty of murder, N.J.S.A. 2C:11-3a(1)-(2); possession of a weapon with unlawful purpose, N.J.S.A. 2C:39-4d; and possession of a weapon under circumstances not manifestly appropriate, N.J.S.A. 2C:39-5d. The judge merged defendant's conviction for murder and possession with an unlawful purpose. He sentenced defendant to the minimum sentence for murder, a thirty-year term of imprisonment without possibility of parole, N.J.S.A. 2C:11-3b(1), a term of parole supervision mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, and to a concurrent nine-month term for unlawful possession of a weapon. In addition, the judge imposed the mandatory monetary assessments and penalties.

On appeal, defendant presents these issues for our consideration:

I. THE TRIAL COURT ERRED IN DENYING

DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL AS A RESULT OF THE TRIAL COURT'S FAILURE TO SUA SPONTE INSTRUCT THE JURY REGARDING INTOXICATION.

 

II. THE PROSECUTOR'S SUMMATION EXCEEDED THE

BOUNDS OF PROPRIETY.

 

III. THE TRIAL COURT ERRED BY FAILING TO

MERGE COUNT III CHARGING POSSESSION OF A WEAPON UNDER MANIFESTLY INAPPROPRIATE CIRCUMSTANCES INTO COUNT I CHARGING PURPOSEFUL/KNOWING MURDER.

 

The State appropriately concedes that defendant is entitled to relief on the ground asserted in Point III. Accordingly, we remand for amendment of the judgment of conviction to reflect the merger of that conviction with defendant's conviction for murder. With that exception, defendant has not established error entitling him to relief.

On the morning of February 28, 2001, defendant started to work on repairing a bathtub in the apartment of Monica Martinez, his downstairs neighbor. Around noon, he asked her if he could bring in Manuel Romero to help him with the project. Martinez agreed, and the two men, who got along well while working, finished the job at about 2:00 p.m.

That evening, Martinez received a phone call from defendant. She did not answer, but she attempted to listen to the recorded message defendant left and could not understand what he had said. Defendant called again about ten minutes later. According to Martinez, he sounded drunk, said he was kidnapped, and referred to one of the kidnappers as a "son of a bitch." Defendant called several more times, now asking Martinez to call the police. She called 911 and handed the phone to a friend of her son's who spoke English more fluently than she. By the time the police arrived, defendant had called again and said he was in the basement.

As the police and members of the Martinez family looked for the defendant, he called to say he was in the basement of a building next door. They found defendant in the basement of a building two doors away. Defendant was covered with blood, giggling and swaying. To Martinez, he was "really drunk" laughing as if he were "mad," "crazy." Defendant said he stabbed his friend twice to defend himself, and he said "they" were trying to rape him.

The officers saw a leg and found the body of Manuel Romero partially in a closet and covered by debris and furniture. Romero's blood alcohol level was .343, and he had multiple stab wounds. In the opinion of the medical examiner, the fatal cut would have caused death within ten to twenty seconds. It was a deep, penetrating stab wound in the area of Romero's larynx. The blade of the knife, which had broken off the handle, was found embedded in Romero's neck. The only evidence of an injury defendant sustained was a mark on his chin.

Defendant was sixty-six years of age at the time of the crime. He had known Romero for many years, and Romero helped him with repairs in the building in which he and Martinez lived. After working, they often drank together. They did that after finishing the work for Martinez. According to defendant, while he was visiting Romero in his apartment after they had drunk about three-quarters of a bottle of whiskey, Romero made an advance that defendant tried to repel. Specifically, Romero pulled defendant toward him and tried to kiss him. As they struggled, defendant saw a knife, grabbed it and used it to warn Romero. Defendant testified that he thought, "a death is coming" or he is "going to rape me." Romero had a grip on defendant's neck, which he would not loosen. Accordingly, defendant stabbed him until he let go.

The primary theory of the defense at trial was self-defense, which the defense backed-up with a claim of provocation. During the conference on the jury charge, defense counsel raised the question of intoxication. The colloquy was as follows:

[Defense Counsel:] My concern is that the [S]tate may attempt to argue that because my client was so intoxicated that his belief [in the need for self-defensive action] could not be a reasonable one and if that is the case, then I think the court is

. . . obligated to charge intoxication.

 

I don't know if [the prosecutor's] going to argue that but if that is going to be an argument to defeat the self-defense claim, then I believe that the court needs to instruct the jurors about intoxication.

 

I am not using it as a defense but in the event that it is used as a

 

[Court:] A cudgel.

 

[Defense Counsel:] Precisely to defeat the affirmative defense of self-defense so I'll let [the prosecutor] make his decision on that. I don't expect him to answer right [at] this moment but, I'm just

 

. . . .

 

[Defense Counsel:] I'm just raising the issue, Your Honor.

 

A second charge conference was held before the jury was given final instructions. The judge indicated that he intended to charge self-defense, murder, aggravated manslaughter, reckless manslaughter and provocation manslaughter. Defense counsel did not request a charge on intoxication and vigorously opposed the prosecutor's request for the court to refrain from charging on provocation manslaughter. The judge concluded that a charge on provocation manslaughter was appropriate, and the judge charged the jurors accordingly. Neither the prosecutor nor defense counsel had any objection to the court's charge as delivered.

Defendant's argument on intoxication relates to voluntary intoxication casting doubt on the State's evidence that he committed this homicide with the requisite purpose to cause or knowledge that he would cause death. N.J.S.A. 2C:2-8a. There is no question that evidence of intoxication is admissible when the State is required to prove that defendant acted with purpose or knowledge in order to obtain a conviction. State v. Cameron, 104 N.J. 42, 53 (1986). In this context, evidence of intoxication serves to negate an element of the offense. Where there is a lesser-included offense available if the defendant acts recklessly, as in the case of homicide, an instruction on intoxication has the same import as an instruction on a lesser- included offense. Based on sufficient evidence of voluntary intoxication, the defendant may be acquitted of purposely or knowingly killing but convicted of recklessly causing the death. Indeed, as a matter of law, voluntary intoxication is not admissible to defeat recklessness. N.J.S.A. 2C:2-8b.

The law on a court's obligation to instruct the jury on a lesser-included offense is well-settled. Where, as here, defense counsel does not request the instruction, the court has no obligation to deliver the charge unless "the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). Under the Supreme Court's decision in Cameron, the essential factual evidence is evidence permitting a finding of intoxication to a degree that rendered defendant "incapable of forming" the requisite state of mind, be it purpose or knowledge. 104 N.J. at 54 (quoting State v. Treficanto, 106 N.J.L. 344, 352 (E.& A. 1929)).

On this record, the evidence did not clearly indicate intoxication to a degree that rendered defendant incapable of acting with the "conscious object" of causing death or incapable of acting while "practically certain" his actions would cause death. N.J.S.A. 2C:2-2b(1)-(2). Defendant stabbed his victim multiple times in the neck and then concealed the body. Defendant recalled the incident, described the struggle in detail and provided a reasoned explanation for his conduct that indicated he was fully aware of his actions and the likely consequence. His actions and testimony do not even suggest a lack of capacity to act knowingly or purposely. For that reason and those stated by Judge Ravin in denying defendant's motion for a new trial on this ground, we reject this claim.

We have considered the prosecutor's summation in light of the objections raised for the first time on this appeal and conclude that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We simply note that the prosecutor did not argue that defendant's belief in the need to use defensive force was unreasonable because defendant was intoxicated. The prosecutor presented argument on the evidence to convince the jurors that defendant's explanation was not credible in terms that were neither inflammatory nor capable of depriving defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Affirmed but remanded for amendment of the judgment of conviction to reflect a merger of defendant's convictions for murder and possession of a weapon under circumstances not manifestly appropriate for its use.