STATE OF NEW JERSEY v. JOSE CARRANZA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE CARRANZA a/k/a

JOSE LACHIRA,

Defendant-Appellant.

_______________________________

November 6, 2013

Before Judges Sapp-Peterson, Lihotz, and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2688.

John P. Dell'Italia argued the cause for appellant (Dell'Italia, Affinito & Santola, attorneys; Mr. Dell'Italia, on the brief).

Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Deaterly Plaisted, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Jose Carranza, was convicted of four counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two, three, four and five) and three counts of felony murder, N.J.S.A. 2C:11-3(a)(3) (counts six, seven and eight), and acquitted of the remaining charges set forth in a nineteen count indictment. The charges stem from an August 4, 2007 gang attack upon four young adults by defendant, Rodolfo Godinez, Gerardo Gomez, Shahid Baskerville, Alexander Alfaro and Melvin Jovel. Various members of the gang committed numerous offenses as the victims were robbed, and some were beaten, sexually assaulted and/or slashed with a machete. Three of the victims were shot and killed. The fourth, although shot in the head, survived and appeared as the State's principal witness, who related the events that occurred during the attack.

On appeal, defendant challenges his felony murder convictions, raising these arguments for our consideration:

POINT I:

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A FELONY MURDER CONVICTION.

A. The robberies were completed when the murders took place.

B. The murders did not take place immediately following the robbery.

C. The murders were too dependent upon another's volitional acts to hold Carranza responsible.

We affirm.

These facts are found in the trial record. On the evening of August 4, 2007, Natasha Aeriel, age nineteen, her brother Terrance Aeriel, age eighteen, along with Dashon Harvey and Iofemi Hightower, both age twenty, spent the evening together. The Aeriels and Harvey attended Delaware State University, and were members of the university marching band; Hightower planned to join the band upon enrollment there.

After relaxing at Vailsburg Park, which closed around 10 p.m., Natasha drove her brother and her friends to Mt. Vernon schoolyard and parked under a streetlight, near the steps. As she exited her car, Natasha noticed two short, fat Hispanic men, dressed in white t-shirts and jeans, sitting and talking on the bleachers, as they drank Colt 45s. The two were later identified as Godinez and Jovel. Natasha and her friends did not want to disturb anyone, so they stayed by the steps, dancing to the car radio. At one point, the men joked with Harvey and laughed at his dancing. Terrance went from the car to the monkey bars, approximately fifty feet away, passing the bleachers as he walked.

At 11:30 p.m. Terrance, who had "climb[ed] on top of the monkey bars," texted Natasha: "It's time to go." Natasha looked toward Terrance and saw four additional men had entered the schoolyard and were walking toward the bleachers. Three were Hispanic, wearing white t-shirts, and identified as defendant, Gomez and Alfaro; the fourth was African American, wearing a gray tank top, who was later identified as Baskerville. Natasha texted her brother, "4 why," asking why they had to leave, but saw he was walking toward the car "real fast" with a serious look on his face. Terrance walked past the men and Natasha saw Godinez and Jovel again converse with the four who had just arrived. Convinced her brother was uncomfortable, Natasha informed the others it was time to leave. When the four friends reached their car, Natasha asked Terrance to drive.

The six assailants, who had been standing in a circle talking, were members of the Mara Salvatrucha gang, commonly known as MS-13. Natasha testified they approached her and her friends, guns waiving, stating, "it's about to go down." On Godinez's direction, the gang "ambushed" the four friends and told them "to . . . get down on the ground, don't look up," then repeatedly ordered them to "give 'em all [their] stuff, [be]cause if they find something, then they was gonna kill [them]." The four obeyed; Terrance and Harvey were lying face down on one side of the car while Natasha and Hightower were lying on the other. Natasha noticed two assailants held handguns. Other trial evidence showed Jovel had a .357 Magnum revolver, Gomez had an inoperable .32 caliber revolver, Alfaro had a machete and defendant held a twelve-inch kitchen knife. Jovel and defendant emptied the victims' pockets, taking their valuables and cell phones. They also rifled through Natasha's purse, located in the car, and ripped the gold chain from her neck.

Baskerville and defendant stayed with the two women. Baskerville unsuccessfully attempted to remove Hightower's pants and then turned to Natasha, pulling down her basketball shorts. He and defendant began digitally penetrating her. Natasha repeated "Jesus" over and over, and was told to "shut the fuck up." Afraid of being killed, she did not resist.

During the sexual assault, Natasha looked under the car and saw Terrance and Harvey stand up and walk toward the nearby steps. She next recalled a young, thin Hispanic boy putting his knee in her back, pulling her hair, and trying to decapitate her with a machete. Natasha screamed and fought back. She identified defendant as one of the three attackers she saw as she stood up. Natasha did not see Hightower and then heard two gunshots. She moved toward the steps as Jovel emerged from the stairwell and saw Natasha standing. Jovel shot Natasha in the head, hitting her near her left ear. She fell to the ground and eventually passed out "in a pool of blood."

That evening, Michael Yancey, who lived in front of the school was awoken around 11:20 p.m. by cries of a young woman, "begging for [mercy]," pleading: "Stop, don't do that. Please, don't do that." The pleas were coming from the schoolyard. Yancey initially thought it was his neighbor's son arguing with his girlfriend. Then the woman's voice grew angry, and two to three minutes later, he heard four gunshots, in the span of about two seconds. He ran to his daughter's bedroom, to better view the schoolyard, and saw a group of five or six young men, pass by his window as they ran out of the schoolyard. He described one as African American and the others "looked like Puerto Rican or something." Yancey called 9-1-1.

Newark Police officers were dispatched at 11:40 p.m. to the Mt. Vernon School. They found Terrance, Harvey, and Hightower shot dead and Natasha seriously wounded, conscious but barely able to communicate. Autopsies determined Hightower died from a gunshot wound to the neck and "sharp-force" injuries to the head and extremities; Terrance and Harvey both died from a gunshot wound to the neck.

Baskerville's testimony confirmed these facts and noted he and defendant stayed with Natasha as the other three victims were taken down the steps. He admitted he and defendant were both "feelin[g] on her . . . touch[ing] her butt[,]" and claimed defendant "stuck his fingers inside her shorts[,]" stating "I wanna fuck you. Umm, you got a nice pussy." He explained Godinez appeared at the top of the steps and directed a "cut throat gesture" toward him and defendant. Defendant slashed Natasha's neck, arms and hand with his knife. It was then that she screamed, pushed defendant off her, and stood up.

After the shootings, Baskerville and defendant ran though backyards as they fled to Godinez's residence. The group burned the victims' identification and credit cards, and split the money. Baskerville saw the .357 Magnum handgun in the apartment. Less than thirty minutes later, a minivan driven by an MS-13 member from Queens, New York, arrived to transport the six gang members. Defendant was dropped off at the Irvington Terminal and the others were taken to a motel in New York.

On August 6, 2007, Natasha positively identified defendant, from a photographic array, as one of the men who robbed and shot her, her brother and her friends. During their investigation, police recovered Harvey's cell phone and positively matched defendant's fingerprints on a Colt 45 bottle found in the schoolyard. Later, the machete was recovered from the schoolyard and DNA testing matched the blood on it with Hightower's DNA. The .357 magnum was recovered and ballistics testing matched the weapon to the bullets retrieved from the victims.

Defendant turned himself into police on August 9, 2007. At that time, police had Gomez and Jovel in custody. The next day, Baskerville was arrested and agreed to cooperate with police. Later, Godinez and Alfaro were located in Maryland and Virginia, respectively, and extradited to New Jersey.

Judge Michael L. Ravin presided over a sixteen-day jury trial conducted in January and February 2012. Prior to the close of evidence, defendant moved for a judgment of acquittal on counts nine through thirteen, sixteen and seventeen (conspiracy to commit murder, murder, attempted murder, and possession of a machete), which Judge Ravin denied. The motion was renewed at the close of the State's case and, again denied. On February 14, 2012, a unanimous jury found defendant guilty of four counts of armed robbery and three counts of felony murder.

After merger, defendant was sentenced to twenty years imprisonment subject to an eighty-five percent parole disqualification, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five years parole supervision on count three, and consecutive forty-five year terms, subject to NERA, with five years parole supervision on each of counts six, seven and eight. Defendant appealed.

Defendant challenges the sufficiency of the evidence to support the murder convictions. Importantly, defendant's motion for acquittal at the close of evidence addressed the murder, conspiracy and weapons charges, but did not challenge the sufficiency of the evidence supporting the three felony murder charges. At the time of the motion, defendant agreed the State's evidence was sufficient to find the killings were intended to conceal the robberies. Further, defendant did not move for a judgment of acquittal or judgment notwithstanding the verdict following the verdict, pursuant to Rule 3:18-2. See State v. Pickett, 241 N.J. Super. 259, 265-66 (App. Div. 1990) (holding where the defendant failed to file a formal motion under Rule 3:18-2, and the record did not reveal a motion was ever filed, the issue was raised improperly on appeal.).

"Generally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). "[A]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" Id. at 386. Reversal would be warranted only if we find plain error, R. 2:10-2, "of sufficient magnitude to raise a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached." State v. McGuire, 419 N.J. Super. 88, 142-43 (App. Div.), certif. denied, 208 N.J. 335 (2011). Specifically, in

assessing the sufficiency of the evidence to support a conviction, the critical inquiry is "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt."

[State v. Bunch, 180 N.J. 534, 548-49 (2004) (quoting State v. Josephs, 174 N.J. 44, 80 (2002); State v. Reyes, 50 N.J. 454, 459 (1967)).]

A person is guilty of felony murder when the murder

is committed when the actor, acting either alone or with one or more other persons, is engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery . . . and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants.

[N.J.S.A. 2C:11-3(a)(3).]

Accordingly, a killing occurring "some time within the course of the robbery including its aftermaths of escape and concealment efforts, constitutes a felony murder within the statutory contemplation." State v. Holland, 59 N.J. 451, 458 (1971). When a robbery is complete, subsequent murders designed to conceal the crime, protect the identity of the robbers or facilitate their flight are also events constituting the circumstances of the robbery. Ibid.

Defendant neither disputes his participation in nor challenges his conviction for the robberies. Rather, he argues the underlying robberies were completed at the time of the murders, or the murders did not occur during the immediate flight from the robberies. Finally, defendant suggests Jovel acted independently when he shot the victims, such that he should not be culpable for such third-party conduct.

The State's position is the victims were killed during events constituting robberies and the entire course of conduct took less than ten minutes. Alternatively, the State posits the victims were killed as part of concealment efforts to eliminate possible eyewitnesses. See, e.g., State v. Spencer, 319 N.J. Super. 284, 308 (App. Div. 1999) ("[A] killing which occurred within the course of committing the predicate offense, including its aftermaths of escape and concealment efforts, constitute[s] felony murder if they were so closely connected with the offense as to be a part of the res gestae.").

The State's evidence included, after taking the victims' property, defendant and his co-defendants moved the three victims down the steps, away from the street. Defendant knew his fellow gang members were armed, and Jovel drew his .357 Magnum long before the robberies were completed. The killings occurred before defendant and his co-defendants left the schoolyard. Defendant voiced no objection and demonstrated no hesitance in participating in the entire course of events, leaving with the others, and meeting at Godinez's house where he and the others split the money and destroyed the victims' identification. Further, as part of an arranged plan, a driver from New York removed the six from Newark, dropping them at various locations to ease escape from the crime scene.

We reject defendant's suggestion the robberies were completed when the murders occurred, finding the argument unfounded. Whether the events were temporally related, including whether the victims were killed to secure silence and aid escape, were questions of fact to be determined by the jury.

Concealment efforts are part of the immediate flight. See Spencer, supra, 319 N.J. Super. at 308. As we found in Spencer:

When the predicate offense and the murder are closely connected in point of time, place and causal connection and are integral parts of one continuous transaction, the actor may be found to be engaged in the course of committing, or attempting to commit the predicate offense or in immediate flight thereafter so as to justify a conviction for felony murder.

[Ibid. See also State v. Pantusco, 330 N.J. Super. 424, 442-43 (App. Div.), certif. denied, 165 N.J. 527 (2000).]

"[I]mmediacy refers to a reasonable time in view of the particular facts and circumstances of the case, and felony murder is established when the initial crime and the murder are closely connected in point of time, place, and causal connection and are integral parts of one continuous transaction[.]" Pantusco, supra, 330 N.J. Super. at 442-43 (internal quotation marks and citations omitted). In Pantusco, the defendant crashed into the victim's vehicle during police pursuit after he was snatching purses that day. Id. at 432-36. We upheld the felony murder conviction, explaining the police chase was sufficiently related to the robberies to be considered immediately subsequent to the robberies. Id. at 440.

Here, sufficient facts were presented allowing a jury to conclude beyond a reasonable doubt that the murders were part of the continuous criminal transaction following the robberies, designed to avoid detection and aid escape. The robberies and murders occurred in the same location, involved the same victims and were close in time. There was no break between the events, but rather continuous offenses against the victims. Further, defendant and his co-defendants did not flee until after they were convinced all victims had been silenced.

We conclude the murders were closely connected in point of time, place, and causal connection to be integral parts of one continuous transaction, rather than constituting separate distinguishable events. See State v. Mirault, 92 N.J. 492, 500-01 (1983) ("The question in each felony murder case related to robbery is one of fact: whether the offender, before inflicting the injury that causes death, has reached a point of at least temporary safety[.]"). Further, the likelihood someone would have been shot and killed when a firearm was used is a highly probable consequence, and not a remote or accidental possibility.

Defendant's final argument attacks the causal connection between Jovel's shootings and his conduct. Defendant suggests the murders were "too dependent on another's volitional acts" to establish his liability. Defendant suggests co-defendants' intervening acts of moving the victims away from the robbery area and then killing them, "relieved [him] of any possible felony murder conviction." We conclude this argument lacks sufficient merit to warrant consideration in our opinion. R. 2:11-3(e)(2). We only add these brief comments.

In State v. Belliard, 415 N.J. Super. 51, 70 (App. Div. 2010), certif. denied, 205 N.J. 81 (2011), this court found the trial court committed plain error when it failed to "instruct[] the jury specifically regarding the effect of volitional acts by third parties, which may break the causal chain." See Model Jury Charge (Criminal), "Felony Murder, Non-Slayer Participant" (rev. Mar. 22, 2004). The facts in Belliard, however, are distinguishable from those here presented.

In Belliard, defendant pushed decedent, who fell, struck his head, and later died. Id. at 63. Witnesses testified the victim had been severely beaten by third-parties both before and after his fall. Id. at 66-68. We vacated defendant's felony murder conviction because the volitional act charge was omitted, despite conflicting evidence on whether the victim's death was caused by defendant's conduct or the acts of others. Id. at 69.

Here, defendant acted in concert with his co-defendants. He came to the schoolyard to meet the others intending to forcibly rob the four unarmed victims. Defendant himself was armed with a knife and knew co-defendants possessed guns and knives. No intervening event or third-party conduct was presented. Accordingly, we find defendant's contention he was unaware the violence he and the others commenced would end in death is specious.