STATE OF NEW JERSEY v. CARLOS A. MACHARE-LUDENA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1815-95T41815-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS A. MACHARE-LUDENA,

Defendant-Appellant.

_________________________________________________

 

Submitted November 14, 2006 - Decided April 3, 2007

Before Judges Kestin, Payne and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Morris County, Indictment No.

05-03-0367.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jack L. Weinberg,

Designated Counsel, on the brief).

Michael M. Rubbinaccio, Morris County

Prosecutor, attorney for respondent (Joseph

Connor, Jr., Assistant Prosecutor, on the

brief).

PER CURIAM

Following a fight between defendant Carlos Machare-Ludena and Juan Cruz, resulting in injury to Cruz, defendant was charged with third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(2) (purposely or knowingly causing bodily injury to another with a deadly weapon), and with fourth-degree unlawful possession of a weapon, a bottle, under circumstances not manifestly appropriate for its lawful use, in violation of N.J.S.A. 2C:39-5d. The matter was tried to a jury, which found defendant guilty only of the petty disorderly persons offense of mutual fighting, N.J.S.A. 2C:12-1a. Fines and sanctions were levied, and defendant was required to pay partial restitution to Cruz and to have no contact with him. No custodial or probationary sentence was imposed.

On appeal, defendant raises the following arguments:

POINT I

THE JURY VERDICTS OF NOT GUILTY ON ALL OF THE CRIMES AND OFFENSES CHARGED COUPLED WITH THEIR FINDING THAT THE STATE DID NOT DISPROVE THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE PRECLUDES THE COURT FROM IMPOSING A GUILTY VERDICT ON THE PETTY DISORDERLY PERSONS OFFENSE OF MUTUAL FIGHTING. ALTERNATIVELY, THE COURT IMPROPERLY CHARGED THE JURY IN THIS MATTER AND THEREBY PRECLUDED THE JURY FROM APPLYING THE SELF-DEFENSE AFFIRMATIVE DEFENSE TO THE PETTY DISORDERLY PERSONS OFFENSE OF MUTUAL FIGHTING.

POINT II

THE PROSECUTOR'S COMMENTS DURING SUMMATION DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

[Partially raised below.]

POINT III

THE COURT'S CHARGE WITH REGARD TO AN ALLEGED ORAL STATEMENT WAS CONFUSING BECAUSE THE COURT DID NOT EXPLAIN TO WHAT IT WAS REFERRING AND THE CHARGE DID NOT COMPLY WITH THE MODEL JURY CHARGE ON STATEMENTS BY DEFENDANT.

We reverse.

I.

Evidence at trial discloses that, on June 11, 2004, both defendant and Cruz, who knew each other in high school, attended a party in Randolph Township. According to Cruz, during the course of the evening, defendant approached him and challenged him to a fight. When Cruz did not take the challenge, defendant taunted him. At approximately 3:30 a.m., Cruz left the party, having consumed three or four rum and cokes, and, once outside, was again approached by defendant, who taunted him further and shoved him in the chest. Cruz responded with blows. However, the fight was broken up by a bystander. Thereafter, according to Cruz, defendant renewed his attack, hitting Cruz over the head with a beer bottle that shattered, causing lacerations to Cruz's scalp and ear that required treatment by a plastic surgeon and an unknown number of stitches. Upon completion of treatment that took place on the morning of the attack, Cruz departed for a week's vacation in Florida. It was only upon his return that the matter was reported to the police.

On cross-examination, Cruz admitted that, after defendant shoved him, Cruz became the aggressor in the initial fight, and that defendant did not throw any punches in that initial episode. Cruz also acknowledged that he had told the medical staff at the hospital where he was treated that he had been hit with a fist, not a bottle, and that he was not sure whether his assaulter had been wearing a ring. Finally, Cruz stated on cross-examination that he did not know the reason for defendant's attack, although he had reported to the police that he had overheard a statement by defendant that Cruz was "too white." Cruz gave conflicting testimony as to whether there were witnesses to the alleged assaults.

Defendant, who testified on his own behalf, claimed that Cruz had initiated the assault by approaching defendant too closely, after Cruz observed defendant to be talking to Cruz's former girlfriend. Defendant admitted that he pushed Cruz away, but stated that Cruz then began to punch him, causing the two to fall to the ground, with Cruz on top. Although a friend, Alberto, attempted to break up the fight, he was unable to do so. Defendant claimed that, in self-defense, he then picked up a bottle and hit Cruz, not realizing that he would injure Cruz's head. Defendant did not contact the police about the incident, believing that it was not necessary. Defendant did not sustain any injury requiring medical attention as a result of the fight. No other witnesses testified on behalf of the State or the defense.

When considering the appropriate instructions for assault at the charge conference, the judge and the parties focused upon assaults conducted with a weapon, commencing with the charged offense of purposely or knowingly causing bodily injury to another with a deadly weapon in violation of N.J.S.A. 2C:12-1b(2). Additionally, the judge determined, over defense counsel's objection, to charge N.J.S.A. 2C:12-1b(3), recklessly causing bodily injury to another with a deadly weapon, and N.J.S.A. 2C:12-1a(2), negligently causing bodily injury to another with a deadly weapon. At defense counsel's request, the judge also agreed to charge the petty disorderly persons offense of mutual fighting, as contained in N.J.S.A. 2C:12-1a.

The jury returned a verdict of guilty only on the reduced charge of mutual fighting. The verdict sheet, as completed, read as follows (omitting guidance to the jury on the sequence of their deliberations):

1, How do you find as to count 1 that Carlos Machare purposely or knowingly caused bodily injury to Juan Cruz with a deadly weapon (bottle)?

__X __ Not guilty _____ Guilty

1a. How do you find as to the lesser included offense that Carlos Machare recklessly caused bodily injury to Juan Cruz with a deadly weapon (bottle)?

__X__ Not guilty _____ Guilty

1b. How do you find as to the lesser included offense that Carlos Machare negligently caused bodily injury to Juan Cruz with a deadly weapon (bottle)?

__X__ Not guilty _____ Guilty

Was this a fight or scuffle entered into by mutual consent?

__X__ Yes _____ No

Has the State proved beyond a reasonable doubt that Carlos Machare did NOT act in self-defense?

_____ Yes __X__ No

2. How do you find as to Count 2 that Carlos Machare did knowingly and unlawfully possess a weapon (bottle) under circumstances not manifestly appropriate for such lawful uses as it may have?

__X__ Not Guilty _____ Guilty

II.

On appeal, defendant argues that the jury's determination that he was not guilty of purposeful or knowing, reckless, or negligent assault with a deadly weapon, together with the jury's determination that the State had not disproven self-defense, precluded the jury from finding defendant guilty of mutual fighting. Alternatively, defendant contends that the judge's charge improperly prevented the jury from considering the affirmative defense of self-defense when determining defendant to be guilty of mutual fighting.

Addressing defendant's second argument, we regard the defense of self-defense, N.J.S.A. 2C:3-4a, in the context of this case, to have been applicable only to the charge of purposeful or knowing assault with a deadly weapon. The failure of the State to disprove self-defense bars a conviction for that form of assault. State v. Kelly, 97 N.J. 178, 200 (1984). As defendant concedes, the defense was inapplicable to the lesser-included offenses of reckless and negligent assault with a deadly weapon (offenses for which, as we have stated, we can discern no evidential basis), because self-defense requires a knowing use of force that could not exist under the scienter requirements of those charges. See also State v. Moore, 158 N.J. 292, 303 (1999) ("The Code's justification defenses are not available in a prosecution where recklessness or negligence suffices to establish the requisite mental element.").

Although self-defense would have been applicable to the purposeful and knowing aspects of the lesser-included offense of simple assault, contained in N.J.S.A. 2C:12-1a(1) (purposefully or knowingly causing bodily injury to another), that charge was not given, nor was it mandated, given defendant's admission that he wielded a bottle. State v. Thomas, 187 N.J. 119, 132 (2006) (a trial court has no duty to give, sua sponte, a charge on a lesser-included offense if the evidence does not clearly warrant such a charge); see also State v. Denofa, 187 N.J. 24, 41-42 (2006); State v. Savage, 172 N.J. 374, 401 (2002).

The defense of self-defense is inapplicable to the charge of mutual fighting - a principle of law long established in this state. See State v. Scaduto, 74 N.J.L. 289, 294 (Sup. Ct. 1907); see also State v. Jordan, 86 N.J. Super. 585, 592 (App. Div. 1965). As we have recognized in a related context, "mutual combat requires a mutual intent to fight, as distinguished from an encounter where one is attacking and the other is merely defending himself." State v. Pasterick, 285 N.J. Super. 607, 617 (App. Div. 1995) (discussing circumstances in which passion engendered by mutual combat constitutes adequate provocation to reduce murder to manslaughter and quoting Charles E. Torcia, 2 Wharton's Criminal Law 161 at 361 (15th ed. 1994)). Self-defense cannot be asserted as a defense to a claim of mutual fighting because the parties to such a confrontation have, in essence, consented to the combat. As a consequence, we reject the contention that the trial judge erred in excepting the defense from his charge on mutual fighting. We affirm his conclusion that "if it's a fight by mutual consent, then you have to disregard the self-defense argument because you can't mutually consent to a fight and then be defending yourself utilizing the [self-defense] justification argument." For this reason, the jury's verdict with respect to self-defense did not invalidate the jury's verdict of guilty on the charge of mutual fighting. It was irrelevant.

Defendant also argues that he cannot be convicted of mutual fighting because he was acquitted of purposeful or knowing, reckless, and negligent assault with a deadly weapon. However, the jury, which was properly instructed on the nature of a "deadly" weapon, may have found that the bottle was not such a weapon. Alternatively, in light of Cruz's statements to hospital personnel that he was hit with a fist and the absence from evidence of any hospital records detailing the observations of such personnel, the jury could have concluded that no weapon was utilized, despite defendant's admission of his use of a bottle upon Cruz in the course of the fight. This latter interpretation of the jury's verdict would also be consistent with its determination that defendant was not guilty of possession of a weapon (a bottle) under circumstances not manifestly appropriate for its lawful use. Moreover, we recognize that "a jury, once properly charged, has the power to disregard even overwhelming proof of culpability and either acquit entirely or convict of a lesser-included offense. State v. Crisantos, 102 N.J. 265, 273 (1986); see also State v. Muhammad, 182 N.J. 551, 578 (2005) (permitting inconsistent verdicts).

As a final matter in this connection, we discern no reversible error in the manner in which mutual fighting was presented to the jury as a separate offense. Although its appearance within the simple assault provisions of N.J.S.A. 2C:12-1 suggests that it merely serves to diminish the gravity of an assault for sentencing purposes, the analysis in which we have engaged demonstrates the distinctions between mutual fighting and assault in terms of the nature of the conduct at issue and the availability of justification defenses. Indeed, as the Commissioners recognized in their commentary to the New Jersey Penal Code, II Final Report of the New Jersey Criminal Law Revision Commission 2C:12-1, at 176 (1971), fighting is no longer equated with assault and battery as it was under our prior criminal law.

We do not regard the fact that the verdict sheet asked for a "yes" or "no" response to whether defendant had engaged in mutual fighting to have invalidated his conviction on that charge, simply because the words "guilty" and "not guilty" were absent. The jury was thoroughly instructed on the State's burden of proof, on the elements of mutual fighting, and on the necessity of determining whether defendant was guilty of the offense of fighting. The meaning of the jury interrogatory, in light of the judge's instructions, was clear, and no juror confusion could have resulted from the verdict form. Therefore, no reversible error occurred as the result of the phraseology utilized. State v. Macon, 57 N.J. 325, 336 (1971).

III.

We are, however, convinced that the prosecutor's closing argument exceeded permissible bounds, thereby depriving defendant of a fair trial and requiring reversal. In reaching this conclusion, we recognize the considerable leeway afforded to prosecutors in this context, State v. Frost, 158 N.J. 76, 82 (1999), and the expectation that their presentation will be both vigorous and forceful. Ibid. However, in this case, in which only two witnesses testified - the victim and the defendant - and their versions of the facts differed radically, credibility was undoubtedly a key consideration for the jury in reaching its verdict. Although circumspection was therefore required, the prosecutor instead repeatedly vouched for the veracity of Cruz while denigrating the nature of the defense that had been presented.

For instance, at the beginning of her argument, the prosecutor met defense comments on the lack of corroborative evidence by stating: "When the truth is on [your side], we don't have to mask and inundate and bring in lots of stuff that isn't really, that takes away from the facts." The prosecutor then recounted those facts in accordance with Cruz's testimony, noting that he was "forthcoming" in admitting that he had hit defendant and then asserting that Cruz "never wavered from the fact of the truth." The prosecutor continued by stating that Cruz "wasn't trying to hide anything. He was extremely forthcoming. He's telling the truth because when the truth is on your side, you don't have to lie."

Shortly thereafter, the prosecutor returned to the same themes when responding to the defense's statement that Cruz waited a week to contact the police. The prosecutor stated: "[Defense counsel] wants to make a big deal again[. W]hen you don't have the facts on your side you try and inundate you [jurors] with unimportant things." As the prosecutor continued, again she reiterated that Cruz was not trying to hide anything, noting that he admitted drinking at the party and hitting defendant. She then asserted: "[H]e wasn't lying. He was saying the truths, good or bad, it was the truth." In contrast, the prosecutor claimed that defendant had "concoct[ed]" his story.

We have held that "[a] prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), (citing State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997)), certif. denied, 182 N.J. 148 (2004). Here, the prosecutor's multiple assertions of Cruz'z truthfulness violated that precept. Similarly, it is improper for the prosecutor to cast unjustified aspersions on the defense, as occurred in this case. State v. Smith, 167 N.J. 158, 177 (2001). The Supreme Court has held that in cases such as this in which credibility is the crucial issue, and the prosecutor improperly impugns the credibility of the defendant's version of the facts, thereby interfering with the jury's right to make credibility determinations, the conduct has a clear capacity to have led to an unjust verdict, and therefore a new trial is required. Frost, supra, 158 N.J. at 88-89.

Additionally, the prosecutor improperly referred to matters not in evidence. State v. Reddish, 181 N.J. 553, 641 (2004); Smith, supra, 167 N.J. at 177. She asserted on the basis of a comment made by counsel to the judge during the charge conference that when defendant put his hands on Cruz, it was a signal that he was looking for a fight. She stated, without evidence to support it, that when the fight broke up, Cruz was in "shock." And she recounted the number of stitches administered to Cruz as "tens, 20's," despite testimony by Cruz that he did not know the number of stitches that he had received.

Finally, and without notice to the court or defense counsel, the prosecutor stated:

The defendant's friend as he testified, Alberto, was there. We didn't hear Alberto testify, we didn't - I don't know why but we never heard from Alberto. But we know he was there. We know that he broke up the fight. We know that it was the defendant and a friend and Juan Cruz was walking away and he goes to the ground and he picks up the first thing he sees, a beer bottle, and he hits him in the head from behind.

Although the prosecutor did not specifically call upon the jury to draw an adverse inference from Alberto's absence, her meaning was clear. The prosecutor's implied invitation to the jury to draw that inference was improper. The Supreme Court has held that "[o]nly in certain circumstances may a prosecutor argue that the jury should draw an adverse inference from a defendant's failure to produce a witness." State v. Wilson, 128 N.J. 233, 244 (1992); State v. Clawans, 38 N.J. 162, 171 (1962). The witness must have been within the power of the party to produce - a requirement that does not appear to have been met in this case as the result of Alberto's alleged move to Florida, a fact to which defendant testified. Further, the testimony of the witness must be more than merely cumulative, and must instead be superior to that adduced at trial. Finally, and of significance here, "the prosecutor must notify the court, out of the presence of the jury, that the State intends to ask the jury to draw an inference based on the defendant's non-production of a witness." Wilson, supra, 128 N.J. at 244. It is only through this procedure that the court is able to determine whether an adverse inference can be properly urged on summation. Ibid. In the present case, the prosecutor failed to follow this mandated procedure, uttering comments that were clearly capable of producing an unjust result. R. 2:10-2.

The record in this matter discloses that defense counsel refrained from objecting to the prosecutor's comments until the conclusion of her summation, and at that time failed to object to the prosecutor's improper vouching and denigration. We regard counsel's remaining objections to references to matters not in evidence and to a missing witness, although late, to have been sufficiently timely to have allowed correction of the error. Wilson, supra, 128 N.J. 245; State v. Farrell, 61 N.J. 99, 106 (1972). Indeed, the court did briefly address the prosecutor's missing witness argument in his jury instructions, stating that defendant "is not obliged to prove his innocence. He's not obliged to bring in witnesses" but not explaining that defendant may have been unable to produce Alberto. Thus, potential prejudice flowing from the prosecutor's comments lingered.

In general, if a defendant does not object to prosecutorial remarks, they will not be regarded as prejudicial. State v. Josephs, 174 N.J. 44, 124-25 (2002). Nonetheless, if, after an evaluation of the severity of the misconduct and the prejudicial effect on the defendant's right to a fair trial, it appears that the conduct was so egregious as to deprive defendant of that right, reversal is warranted. State v. Timmendequas, 161 N.J. 515, 575-76 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In this two-witness case in which divergent versions of the facts were presented and an evaluation of credibility was the key to the jury's determination, we regard the prosecutor's continual vouching throughout her short summation, when combined with her denigration of the defense case and the other improper arguments to which we have alluded, to require a new trial.

In light of this determination, we decline to address defendant's argument with respect potential juror confusion arising from the court's instruction regarding his alleged oral statement that Cruz was "too white."

 
Reversed and remanded for a new trial.

Defense counsel objected to the charge of reckless assault with a deadly weapon on the ground that it was not charged in the indictment and, she claimed, it was not a lesser-included offense to the third-degree aggravated assault that was charged. She objected to the charges both of reckless and negligent assault with a deadly weapon on the ground that they were unsupported by the evidence. Counsel observed:

[I]f the jury accepts the State's version, this was a vicious attack on their "victim."

If they accept the defense version, it's a self-defense or a fighting. There's really no middle ground based on the testimony.

We agree that the two lesser-included offenses were not supported by the evidence and should not have been charged, State v. Jenkins, 178 N.J. 347, 361 (2004); State v. Savage, 172 N.J. 374, 396-97 (2002), but in light of the verdict of acquittal on the two offenses, we discern no reversible error by the court in having done so.

Nonetheless, it has been held in the context of cases in which passion/provocation arising from a mutual fight could be deemed sufficient to reduce charges against the defendant from murder to manslaughter, "'the contest must have been waged on equal terms and no unfair advantage taken of the [victim]. * * * The offense is not manslaughter but murder where the defendant alone was armed; and took an unfair advantage of the deceased.'" State v. Crisantos, 102 N.J. 265, 274-75 (1986)(quoting 1 O. Warren and B. Bilas, Warren on Homicide 110 at 525-26 (perm. ed. 1938)).

The prosecutor's mistaken reference to "serious bodily injury" resulting from defendant's alleged assault was immediately corrected by her and was later clarified by the judge in his jury instructions when he stated, "by the way, the charge is not that the defendant caused serious bodily injury. The charge is that he caused bodily injury." We perceive no error as a result.

If notice had been properly given, a determination of Alberto's availability could have been made on the basis of a complete evidential record. Because of the lack of notice, defendant's claim of unavailability was untested.

(continued)

(continued)

18

A-1815-05T4

 

April 3, 2007