STATE OF NEW JERSEY v. MARVIN ROMERO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0817-03T40817-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARVIN ROMERO,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 28, 2006 - Decided

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, 01-07-1438.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant, Marvin Romero, was convicted of first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3a(1), (2) (count one); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d (count three). After merging count two with count one, Judge Isman sentenced defendant for murder to a term of fifty-five years imprisonment with a thirty-year parole disqualifier. On count three, the judge imposed a concurrent eighteen-month prison term. On appeal, defendant presents these arguments:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO MURDER.

POINT II

THE GUILTY VERDICT AS TO MURDER WAS SHARPLY AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL.

POINT III

THE STATE COMMITTED SIGNIFICANT AND HIGHLY PREJUDICIAL MISCONDUCT, NECESSITATING REVERSAL. (U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 9, 10. (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST THAT THE JURY BE INSTRUCTED THAT IT COULD CONSIDER THE DEGREE OF FORCE USED IN CONSIDERING IMPERFECT SELF-DEFENSE. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10.

POINT V

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE.

We reject these arguments and affirm.

Defendant was employed at Los Amigos Restaurant in Atlantic City. At 6:00 a.m. on June 3, 2001, defendant and his co-worker, Ricoberto Alverez, closed the restaurant. They each drank a shot of tequila and a Corona beer, after which they walked to Tony's Baltimore Bar and Grill (Baltimore Grill). The bartender was Sean McGovern. Defendant and Alverez entered the Baltimore Grill at 6:44 a.m. Defendant and Alverez each ordered a shot of tequila and a nine ounce glass of beer. Over the next hour or so, each of them consumed three more shots of tequila and another glass of beer.

McGovern's shift was scheduled to end at 8:00 a.m., and he was relieved by another bartender, John Pesce, who took over at about 8:30 a.m. Alverez ordered one more shot of tequila, but passed it to defendant. Alverez then left the Baltimore Grill. Defendant drank the shot of tequila but did not have sufficient cash to pay for it. He displayed his paycheck, but Pesce refused to cash it. Defendant demanded another drink, which Pesce refused unless defendant could produce cash. Pesce then obtained the assistance of a Spanish-speaking employee, Alberto Rivera, and through Rivera instructed defendant to leave, which he did.

About twenty minutes later, defendant returned and resumed his seat at the bar. Pesce assumed defendant cashed his paycheck and was prepared to serve him. However, rather than cash, defendant again displayed his paycheck and again began loudly demanding that he be served more tequila. Pesce again obtained the assistance of Rivera to instruct defendant to leave. Defendant was argumentative and agitated, and spoke in a loud voice. Other patrons appeared to be uncomfortable with the situation, and Pesce physically removed defendant from the premises, depositing him on the sidewalk and telling him not to come back.

Defendant left the area, but about twenty minutes later re-entered the bar. This time he did not sit at the bar but walked directly to a payphone and placed a call, which lasted only a short time. Pesce did not object, and when defendant completed his call, he left the bar. Soon after, a police officer responded, advising that the police had just received a 9-1-1 call from the payphone. Pesce informed the officer that the individual who placed the call had left.

About fifty minutes later, at 10:23 a.m., defendant returned to the Baltimore Grill. He sat down at the bar and began yelling at Pesce in Spanish. After the two men shouted at each other for a time, Pesce again enlisted the assistance of Rivera to instruct defendant to leave. Rivera came out of the kitchen with the kitchen manager, Henry Crumb. Rivera told defendant he had to leave. Defendant agreed and was escorted out of the door by Rivera and Crumb. There was no physical contact involved.

Almost immediately, at 10:28 a.m., defendant re-entered the bar. Pesce, Crumb, Rivera and another employee all started to move toward defendant, who walked out the door through a small vestibule. As the four men were in the vestibule, Pesce opened the outside door and stepped onto the sidewalk. Defendant then reached into his jacket and displayed a large butcher knife, containing a seven-inch blade and four to five inch handle. Pesce exclaimed "He's got a knife" and directed everyone back inside and called 9-1-1. Crumb and Rivera remained outside.

Defendant walked down Atlantic Avenue. Rivera appeared to be following him, and Crumb appeared to be heading across Atlantic Avenue toward a nearby police station. Eventually, defendant and Crumb came into contact with each other and engaged in a physical altercation, during which defendant stabbed Crumb at least ten times with the butcher knife, causing his death.

Several independent eyewitnesses observed different portions of the encounter, and gave somewhat conflicting accounts of what they saw. We summarize the account of Laura Yorkman, who observed the encounter from her car, and which the jury was entitled to believe. Yorkman saw defendant and Crumb arguing. Defendant then lunged at Crumb. Defendant then turned and began to walk away. Crumb made a face as if he were surprised by something and ran toward defendant, but before reaching him, Crumb fell to the ground. Defendant then kicked Crumb, and while Crumb lay on the ground, defendant delivered what appeared to Yorkman to be three or four good punches to Crumb's side and abdomen. Defendant then got up and ran down Iowa Avenue. Crumb attempted to get up, but staggered and collapsed. Yorkman then realized that defendant had not been punching Crumb but stabbing him.

As defendant ran down Iowa Avenue, he threw the knife into a parking lot. The knife was later recovered and connected to the homicide by forensic evidence. Another independent witness, James Bowles, was walking along Iowa Avenue and also saw the stabbing. Bowles also saw defendant discard the knife. Bowles attempted to restrain defendant. He grabbed him and both men fell to the ground. Defendant succeeded in escaping by slipping out of the jacket he was wearing. The police recovered the jacket, which had the name "Marvin" on it, and which defendant later admitted was his. The jacket had Crumb's blood on it.

Bowles followed defendant as far as he was able, but he lost sight of defendant on Montpelier Avenue. When the police arrived, they were directed to Montpelier Avenue, and they apprehended defendant at his residence at 202 North Montpelier Avenue. Defendant had just taken a shower and informed the police he had been sleeping at home all night. At the scene, Bowles, Yorkman, and Rivera all identified defendant as the assailant. Later, McGovern and Pesce identified defendant from a photo array.

Defendant was arrested and taken to the stationhouse. After receiving Miranda warnings, defendant acknowledged that he and Alverez each drank a shot of tequila at Los Amigos, but he said he then went directly home. When told that Alverez said they had gone to the Baltimore Grill, defendant continued to deny it and said Alverez was lying. He denied being at the Baltimore Grill at any time that day. He admitted the jacket was his, but when told it was recovered from the crime scene, he contended the police must have planted it there.

Defendant did not testify at trial or present any witnesses. In light of the overwhelming evidence that defendant killed Crumb, his attorney did not deny the killing, but asserted self-defense. Alternatively, if defendant would not be exonerated on the basis of self-defense, he asserted that he should not be found guilty of murder, but the homicide should be mitigated under theories of passion/provocation, voluntary intoxication, or imperfect self-defense. After being instructed on all of those theories and being given all of the applicable options, the jury found defendant guilty of knowing or purposeful murder.

At the end of the State's case, defendant moved pursuant to Rule 3:18-1 for a judgment of acquittal of the crime of murder. Defendant argued that the State's evidence could not support a finding beyond a reasonable doubt that defendant did not act in self-defense. On appeal, defendant further argues that the State's evidence was insufficient to prove beyond a reasonable doubt that his crime should not have been mitigated to one of the Code's forms of manslaughter because of imperfect self-defense, namely that he acted under an honest, although unreasonable, belief that his actions were necessary for his own safety, see State v. Bowens, 108 N.J. 622, 628 (1987); or that he was intoxicated to such an extent that he was not capable of acting knowingly or purposely, see State v. Mauricio, 117 N.J. 402, 418 (1990); or that he did not commit the homicidal act in the heat of passion resulting from reasonable provocation, see N.J.S.A. 2C:11-4b(2); State v. Mauricio, supra, 117 N.J. at 411; State v. Taylor, 350 N.J. Super. 20, 39 (App. Div.), certif. denied, 174 N.J. 190 (2002).

In support of his arguments, defendant advances this theory of the case: After suffering a severe physical indignity at the hands of Pesce, and after again being ejected from the Baltimore Grill, defendant, after showing the knife in his possession as a warning, ran away from the scene, and engaged in the fatal confrontation only after Crumb encountered him and physically engaged him as defendant was running away.

The standard governing disposition of a motion for acquittal under Rule 3:18-1 is well settled. Acquittal should be granted if the evidence is insufficient to warrant conviction of the charge in question beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). The judge must determine

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 all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Ibid.]

Applying this standard, Judge Isman did not err in denying defendant's motion for acquittal. Defendant's theory of the case relies upon the premise that the critical timeframe was the minutes immediately preceding the fatal altercation. Defendant argues that the jury could not have found beyond a reasonable doubt that he was not in fear for his safety because he thought he was being chased by several assailants, or that he was so intoxicated that he could not act knowingly or purposely, or that he was confronted and accosted by Crumb, with one or more of Crumb's associates nearby, and thus acted in the heat of passion under a reasonable provocation. The State, on the other hand, argues that the jury was entitled to consider all of the evidence of the events for the several hours leading up to the fatal altercation. Thus, the jury could reasonably find that defendant repeatedly returned to the Baltimore Grill, that his dissatisfaction with his treatment there continued to build, that during the fifty minutes preceeding his last re-entry into the bar he went home or somewhere else and armed himself with a butcher knife, and he returned the final time with the purpose of doing harm to Pesce or someone else at the Baltimore Grill. The State points to defendant's efforts to escape detection as further evidence that his actions were not seriously affected by the consumption of alcohol. Finally, the State points to the account of the crime described by Yorkman as undermining defendant's theory.

The jury could have accepted one of the alternate theories posed by defendant. But that is not the test for acquittal under Rule 3:18-1. Viewing the evidence in its entirety in the light most favorable to the State, the jury could reasonably find beyond a reasonable doubt that defendant knowingly or purposely killed Crumb, and that he did not do so in the heat of passion resulting from a reasonable provocation, or from an honest belief that it was necessary to protect himself, or that he acted while his faculties were prostrated due to the consumption of alcohol.

In defendant's second point of argument, he contends that his new trial motion was improperly denied because the guilty verdict as to murder was against the weight of the evidence. We disagree, essentially for the same reasons that we reject defendant's argument regarding denial of his motion for acquittal. A guilty verdict by a jury shall not be set aside as against the weight of the evidence unless, "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. That standard has plainly not been met, and no further discussion is required.

We next address defendant's contention that he was denied a fair trial because of comments by the prosecutor in his opening and in his summation. Defense counsel made no objection at trial to any of the comments now complained of on appeal. We therefore evaluate the comments under the plain error standard and, if there was error, we will not reverse unless the error was clearly capable of producing an unjust result. R. 2:10-2. Not any possibility of an unjust result will suffice. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

In his opening, the prosecutor, in the course of describing the evidence he expected to present, commented that he expected the jurors to be firmly convinced after hearing the evidence of defendant's guilt, and said, "I say that because I am acutely aware of what I will just refer to as the strength of the State's case." He later concluded in his opening statement with this: "I ask that you be patient. I ask that you give full, fair and open consideration to the testimony, to the evidence, and I'm telling you not to use the basketball euphemism, but it is the NBA playoffs, this is a slamdunk; this is a slamdunk."

It is improper for a prosecutor to express his or her personal opinion regarding the case. State v. Jenkins, 299 N.J. Super. 61, 70 (App. Div. 1997). The expression of such opinions has the capacity to lead the jury to believe that the prosecutor's opinion is based on evidence that might not be presented at trial. State v. Thornton, 38 N.J. 380, 398 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963). The prosecutor's comment that he was "acutely aware" of the strength of the State's case tested the boundaries of this proscription, but, in the context of describing evidence that the prosecutor believed would overwhelmingly establish defendant's guilt, the comment probably did not cross the line. The "slamdunk" comment did cross the line. It had the capacity to diminish the importance of the trial and the role of the jurors, by conveying to the jurors that the outcome was inevitable. And, the information was imparted by an expert on criminal prosecutions, representing the State and holding a position of high esteem. This was an improper comment.

However, the impropriety was somewhat softened by the prosecutor's immediately preceding comments asking the jurors to be patient as they heard the evidence and to give a full, fair and open consideration to the evidence. Further, defense counsel, who did not object, strategically used the comment in his summation, arguing that the State considered its case a slamdunk because representatives of the prosecutor informed witnesses prior to trial that they were not required to discuss the case with defense investigators.

As a general proposition, if defense counsel fails to object at trial, "the remarks will not be deemed prejudicial" by the court, because it suggests counsel "did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 83-84 (1999) (citing State v. Ramseur, 106 N.J. 123, 323 (1987)). Moreover, the failure to object prevents the trial court from curing the problem. Id. at 84 (citing State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997)). In assessing whether the improper remarks require reversal, we must determine whether the conduct was "so egregious that it deprived the defendant of a fair trial." Id. at 83. Where there was no objection at trial and no request for a curative instruction, it may be fair to infer that "in the context of the trial the error was actually of no moment." State v. Macon, supra, 57 N.J. at 333.

Applying these principles and the plain error standard, and also considering the ameliorating language by the prosecutor and the later strategic use of the prosecutor's comments by defense counsel, the error is not sufficient to raise in our minds a reasonable doubt as to whether it led the jury to a result it otherwise might not have reached. Therefore, the impropriety does not warrant reversal.

Defendant also directs our attention to the prosecutor's characterization in his opening statement of the stabbings as "savage" acts. The prosecutor did so in describing, as he anticipated the evidence would show, the multiple deep stab wounds inflicted by defendant on Crumb. The description was consistent with the anticipated evidence, was not unduly inflammatory, and did not constitute error.

Defendant next points to two aspects of the prosecutor's summation. Defendant contends the prosecutor misstated the law regarding passion/provocation manslaughter by arguing that the offense would not apply if the victim was not the purported provocateur. The context in which this statement was made was an argument to the jury that defendant's real disagreement was with Pesce, and "[h]e didn't get to kill John Pesce so he kills Henry Crumb." Defendant also argues that the prosecutor misstated the facts, because Crumb was one of the employees of the Baltimore Grill who followed defendant out of the bar and encountered defendant as he was attempting to get away. The factual scenario posited by the prosecutor was one which could reasonably be found by the jury based upon the evidence. Thus, there was no impropriety in that regard. To the extent that the prosecutor's comments may have mischaracterized the legal principles pertaining to passion/provocation manslaughter, there was no objection, and the judge made clear in his charge that his instructions on the law controlled and, to the extent of any inconsistency, any comments by the attorneys should be disregarded. The passion/provocation manslaughter charge given by the judge was clear and thorough. There was no plain error in the prosecutor's comment that would warrant reversal.

Finally, defendant complains that the prosecutor improperly explained to the jury the effects of alcohol consumption, in conjunction with the timeframe in which it was consumed. Essentially, the prosecutor argued that the more alcohol you consume the more intoxicated you will become, but once you stop drinking, and time passes, eventually you will sober up. Defendant argues for the first time on appeal that these comments had no basis in the evidence. We find no impropriety in the prosecutor's comments, as they dealt with general concepts, grounded in common sense, which are within the common knowledge of jurors.

As we have stated, the defense proffered alternate theories by which the homicide could be mitigated to one of the Code's forms of manslaughter, including imperfect self-defense and passion/provocation manslaughter. The judge charged those forms of homicide. The instructions were clear, thorough, and legally correct. Defendant does not take exception to the charge as given. However, he argues the judge erred by declining to include the following charge that defendant requested at trial:

You are further instructed that if the evidence convinces you that the Defendant's belief [in the] need to resort to deadly force was honest and reasonable, but the State proves, beyond a reasonable doubt, that he acted on that belief with excessive deadly force . . . . then you may consider . . . evidence of this honest and reasonable belief in determining whether the homicide, if committed purposely and knowingly, was committed in the heat of passion resulting from a reasonable provocation.

The trial judge found this requested instruction confusing and unnecessary. We agree, and we find no error in the judge's refusal to include it.

Finally, defendant argues that his sentence is excessive. We are satisfied that the judge's findings regarding aggravating and mitigating factors were based on competent and credible evidence in the record, that the judge did not incorrectly apply the sentencing guidelines enunciated in the Code, that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

 

Specific times for the events at the Baltimore Grill were established by reference to the recordation of events by a security camera.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

(continued)

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A-0817-03T4

March 21, 2006