STATE OF NEW JERSEY v. JORGE ALVARADO

(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NOT FOR PUBLICATION WITHOUT THE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-6010-05T46010-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JORGE ALVARADO,

Defendant-Appellant.

____________________________________

 

Submitted December 11, 2007 - Decided

Before Judges Grall and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 03-07-1190.

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

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Lisa M. De Martini, Assistant Prosecutor, on the brief).

PER CURIAM

After a trial by jury, defendant, Jorge Alvarado, was found guilty of the murder of seventeen-month-old Jan Carlos Torres, the son of his girlfriend, in violation of N.J.S.A. 2C:11-3(a). Defendant, who was thirty years old at the time of sentencing and had no prior record, was sentenced to life imprisonment, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2, requiring that he serve a period of imprisonment of sixty-three years, nine months and three days before becoming eligible for parole. We affirm.

The death of the child took place on March 2, 2003. Defendant and the mother, Maria Delcarmen Torres, had been living together since September of the preceding year. At about 10:00 a.m. on the day in question, the mother had left the house on errands and testified that the child was well. Around 11:30 a.m., she received a call from defendant that the child was feeling bad and "getting choked." She was only a block away, and when she arrived home, the child was not moving. Defendant denied doing anything to the child. Defendant called 911 at her request. The child was taken to the hospital, where he was pronounced dead.

The record contains a number of statements attributed to defendant as to what happened. In his statement to the police, defendant explained that he had pressed the child to his chest when the baby began to cry, and when the child quieted down, he put the baby on the bed. He then heard the child gasp for air, and he called the mother. He told the police that he did not intend to kill the child. He attributed bruises found on the child's body to a struggle he had with the mother the night before when she attempted to take the baby from him. Defendant's former girlfriend, Luz Mary Carcamo, testified that when she saw defendant in jail, he told her that when the child began to cry, he began playing with the child, tossing him in the air, but then slipped on spilt milk and could not catch the child. Francisco Escribano, a prisoner in the cell next to defendant, testified that defendant told him that the baby would not stop crying, and out of frustration, defendant slammed the baby against the wall and punched the child in the chest, but miscalculated, causing the baby to hit the bedpost and fall to the floor. Defendant then put the baby on the bed and called his girlfriend.

Dr. Thomas A. Blumenfeld, M.D., a forensic pathologist from the State's Regional Medical Examiner's Office, testified for the State. He expressed the opinion that the child suffered from battered child syndrome on the basis that the injuries were repetitive (occurred on more than one occasion) and could not have occurred accidentally. He advised that the child had bruises on his body that had occurred on different days, some possibly more than seven days earlier. In addition, the child had rib fractures which had occurred ten days to a month or so before his death. Some of the fractures roughly corresponded to the site of fingerprint bruises. The doctor could not determine from the fracture and bruises whether the child had been injured at two separate times or more times than that.

The doctor found that the most likely mechanism to have caused the death was squeezing or compression of the child's chest. He described the death as suffocation. The injuries he found were not consistent with punching; rather, they were consistent with pressing or placing pressure on the child. Further, he found that rather than one mechanism, three mechanisms or steps were involved on the day of the death: the child had been squeezed in the chest, pushed up on the face, and injured on his left thigh. The doctor estimated that it would take roughly one minute for the child to die with consistent squeezing. Death would be slower and more painful if the compression stopped before death.

After conducting a Rule 104 hearing, the trial judge allowed the child's mother, who had pled guilty to endangering the child, to testify to earlier instances when defendant had harmed her son. She testified to bruises she found on her son on occasions after the child had been in defendant's care. She also identified photographs of the child with visible bruises. In addition, she testified that on one occasion she found her son with a bloody mouth with defendant nearby, although defendant said the child had hit himself with a toy. Another time she discovered hot sauce on the nipple to the baby's bottle. According to the mother, defendant admitted putting the hot sauce on the nipple as a practical joke. Another time she found melting ice cubes in the baby's diaper after defendant had left for work.

The charges of murder, aggravated manslaughter and reckless manslaughter were submitted to the jury, which returned a verdict of guilty of murder.

In this direct appeal from the conviction, defendant raises four issues.

POINT I

THE TRIAL JUDGE ERRED IN ADMITTING EVIDENCE OF PRIOR ASSAULTS UPON THE VICTIM AS THERE WAS NOT CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT WAS THE PERSON WHO HAD COMMITTED THESE ASSAULTS.

POINT II

THE JURY INSTRUCTION ON OTHER-CRIMES EVIDENCE WAS INADEQUATE IN THAT THE BURDEN OF PROOF GIVEN TO THE JURY CONTAINED THE TERM "SATISFIED" INSTEAD OF THE PROPER "CLEAR AND CONVINCING EVIDENCE" STANDARD. (Not Raised Below)

POINT III

THE ABSENCE OF A LIMITING INSTRUCTION CONCERNING THE GUILTY PLEAS ENTERED BY THE CO-DEFENDANT DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (Not Raised Below)

POINT IV

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

I

Defendant contends that the lower court erred in allowing the State to introduce evidence that defendant had committed prior assaults upon the child.

Evidence Rule 404(b) prohibits the introduction of evidence showing that a person committed other crimes, wrongs or bad acts in order to prove the disposition of the person to commit such acts. However, evidence of other crimes is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b).

Before such evidence is admissible, the court must find the following four factors:

1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992).]

After conducting a hearing in which the mother testified, the trial court found that each of these factors had been met and allowed the witness to testify to these prior bad acts before the jury.

On appeal, the defense concedes that the first two prongs of the Cofield test have been met. The evidence of prior assaults on the child is admissible and relevant on the question of whether the death was accidental or not, and therefore satisfies the first prong. See State v. Compton, 304 N.J. Super. 477, 482 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998). Since the abuse of the child occurred within a few months of his death, the second prong was met.

Defendant argues that the third and fourth prongs have not been met. He contends that the State has not shown by clear and convincing evidence that he committed the prior abuse of the child. The proofs on who committed these prior bad acts rested solely on the testimony of the mother. The trial court found her testimony on these points to be reliable. We must defer to the credibility findings of the trier of fact who has had the opportunity to hear the testimony and observe the demeanor of the witness. See State v. Locurto, 157 N.J. 463, 470-71 (1999). Further, the New Jersey Supreme Court has stated that the third prong may be satisfied by the uncorroborated testimony of a cooperating co-defendant. State v. Hernandez, 170 N.J. 106, 124-25 (2001).

In applying the fourth prong, the trial judge acknowledged the prejudicial effect of this evidence, stating that it was "highly inflammatory. Nobody in their right mind likes someone beating up a baby, inflicting pain upon a baby . . . ." The court, however, in allowing admission of the evidence, recognized that the evidence "clearly was probative," stating that:

[W]ithout this testimony, I could see a reasonable juror wondering, hmm, was this a mistake, was he just trying to be quiet with the baby. Was there a tug-of-war between mom and Mr. Alvarado or was there something more and it is probative to the issue of knowledge and intent which goes to the charge of murder. Knowledge, intent and purpose.

A trial court's decision to admit prior bad acts evidence will be upheld unless that decision is deemed to be an abuse of discretion. State v. Marrero, 148 N.J. 469, 483 (1997). Absent a showing of a mistaken exercise of discretion such as a "clear error in judgment," this court will not disturb the trial court's decision on this issue. State v. Moorman, 286 N.J. Super. 648, 660 (App. Div. 1996). We find no abuse of discretion here. Evidence that is highly inflammatory may still be admitted where its probative value outweighs its prejudicial effect. See State v. Cusick, 219 N.J. Super. 452, 464-65 (App. Div.) (admitting evidence that defendant had previously sexually assaulted children, on the grounds that this evidence was "extremely probative" to establish defendant's intent in a trial on charges that he had sexually assaulted minors), certif. denied, 109 N.J. 54 (1987). Here, evidence that defendant had previously abused the child, while prejudicial, was material on the question of whether the injuries to the child were intentional or accidental.

II

Defendant contends that the trial court erred in the instructions given to the jury on the other crimes evidence. This argument was not raised below, and thus, any error in this regard is not grounds for reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2.

Specifically, defendant objects to the court's use of the word "satisfied" from the Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs, or Acts" (2007). In his jury charge, the trial judge quoted the following portion of that model charge: "[b]efore you can give any weight to this evidence, you must be satisfied that the defendant committed the other act or acts. If you are not so satisfied, you may not consider it for any purpose."

Defendant contends that the trial judge should have instructed the jury that it must "clearly and convincingly believe" that defendant committed these prior bad acts. We reject this position, since it is contrary to existing law. State v. Wilson, 158 N.J. Super. 1, 10 (App. Div.), certif. denied, 79 N.J. 473 (1978).

III

Defendant contends that the trial court erred in failing to provide the jury with limiting instructions regarding the guilty plea entered by the mother, who testified as a witness, thereby depriving him of his rights to due process of law and a fair trial. Specifically, defendant contends that with respect to the guilty plea, the trial court should have given the jury two instructions: first, that the plea could only be used to impeach the mother's credibility, and second, that the plea could not be used as substantive evidence of defendant's guilt.

Since this issue was not raised before the trial court, it is governed by the plain error standard, and an error will not be grounds for reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2.

The mother, a co-defendant, testified to defendant's prior bad acts with the child. She had also been charged with the murder of the child, but had pled guilty to endangering the welfare of the child and faced a seven-year sentence on this charge. When she testified, the jury was made aware of her guilty plea and sentence.

The guilty plea of a testifying co-defendant is admissible on the issue of the witness's credibility. State v. Stefanelli, 78 N.J. 418, 433 (1979). Even when no request is made by counsel, the trial court has an independent obligation to instruct the jury on the limited permitted use of the guilty plea for credibility purposes. Ibid. Here, the trial court failed to give such a limiting instruction, although the trial court did give a comprehensive instruction on the general credibility of witnesses.

The guilty plea of a co-defendant, however, may not be used as substantive evidence of the defendant's guilt. Ibid. An instruction advising the jury of the prohibited use of the guilty plea, namely, that it is not substantive evidence of a defendant's guilt, is generally not required. State v. Murphy, 376 N.J. Super. 114, 122 (App. Div. 2005). Such an instruction may be required in some circumstances, such as those present in the Murphy case, where the witnesses had pled guilty to the same offense that defendant was charged with, and the judge had enhanced the reliability of the guilty pleas by advising the jury that the pleas would not have been accepted unless the judge was satisfied that the witnesses were actually guilty. Id. at 122-23.

Under the circumstances in this case, however, a jury instruction setting forth the prohibitive use of the guilty plea was not necessary. Here, the fact that the mother pled guilty to endangering the welfare of the child would not lend any weight to the State's claim that defendant murdered the child. The evidence is undisputed that the child died as a result of defendant's actions when he was home alone with the child and the mother was not present. Indeed, the mother's plea demonstrated that she shared responsibility for what happened to the child. While one could infer from her guilty plea that she knew defendant had previously hurt the child, that very information was before the jury anyway through her direct testimony.

For similar reasons, the court's failure to give the limiting instruction on the permitted use of the guilty plea was harmless error. The limiting instruction is required in order to deter the jury from using a co-defendant's guilty plea as substantive evidence of a defendant's guilt. See State v. Stefanelli, supra, 78 N.J. at 433-35. As noted above, the mother's guilty plea did not provide a basis to infer that defendant had the requisite intent for murder.

Further, we note that the trial court did give the appropriate limiting instruction regarding evidence of prior bad acts, admitted under Evidence Rule 404(b), which also supported the mother's conviction. That instruction advised the jury that the prior bad acts testimony was relevant on the issues regarding defendant's intent, motive and state of mind and absence of accident or mistake, and it was not to be used to reach the conclusion that he was a bad person. The instruction was given both when the mother testified and in the jury charge.

In looking at the record as a whole, no reasonable inference could be drawn that the mother's guilty plea to endangering the welfare of the child lent evidentiary weight to the claim that defendant murdered the child.

IV

Defendant maintains that his sentence is excessive. Defendant was convicted of a single count of murder, which carries a minimum sentence of thirty years imprisonment and a maximum penalty of life imprisonment. N.J.S.A. 2C:11-3(b)(1). Defendant received the maximum sentence of life imprisonment.

When imposing the sentence, the trial court weighed the aggravating and mitigating factors under N.J.S.A. 2C:44-1. The trial court found the following aggravating factors: aggravating factor one, that the crime was "committed in an especially heinous, cruel, or depraved manner," N.J.S.A. 2C:44-1(a)(1); aggravating factor two, in this case, the vulnerability of the victim due to his extreme youth, id. at 2C:44-1(a)(2); aggravating factor three, namely, "[t]he risk that the defendant will commit another offense," id. at 2C:44-1(a)(3); and aggravating factor nine, the need for deterrence, id. at 2C:44-1(a)(9). The court found only one mitigating factor; namely, defendant's lack of a prior juvenile or criminal record. N.J.S.A. 2C:44-1(b)(7). After weighing these factors, the trial court imposed the maximum sentence permitted by law, life imprisonment.

This court is required to take a "careful and vigorous review" of the sentence. State v. Kirk, 145 N.J. 159, 175 (1996). In our review, we must determine whether the sentence is supported by competent evidence in the record and whether the sentence is so unreasonable that it "shocks the judicial conscience." State v. Paduani, 307 N.J. Super. 134, 148 (App. Div.), certif. denied, 153 N.J. 216 (1998). We may not substitute our judgment for that of the trial court. State v. Johnson, 118 N.J. 10, 15 (1990). The test is not whether we would have imposed a different sentence, but whether no reasonable judge would have imposed such a sentence. State v. Roth, 95 N.J. 334, 365 (1984).

Within these limitations, an appellate court can (a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.
 
[State v. Evers, 175 N.J. 355, 387 (2003) (quoting State v. Jabbour, 118 N.J. 1, 6 (1990)).]

We find no error here. In this case, the trial judge carefully set forth a factual basis for his findings on each of the aggravating factors. He explained how he weighed these factors and reached his conclusion that a life sentence was warranted.

Affirmed.

 

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A-6010-05T4

March 6, 2008