STATE OF NEW JERSEY v. JOSE D. POLONIA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3850-05T43850-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE D. POLONIA,

Defendant-Appellant.

_______________________________________

 

Submitted September 19, 2007 - Decided November 2, 2007-

Before Judges Cuff, Lihotz and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-07-0652.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant, Jose D. Polonia, of first degree murder (count one), second degree possession of a weapon for an unlawful purpose (count two), and third degree unlawful possession of a weapon (count three). At sentencing, the court merged count two into count one and imposed a thirty-six year prison term with an eighty-five percent parole ineligibility period. On count three, the court also imposed a consecutive five-year prison term with two and one-half years of parole ineligibility.

On this appeal, defendant raises the following legal points:

POINT I

THE DEFENDANT'S ON-THE-SCENE ORAL STATEMENT MADE TO DETECTIVE ROTSAERT, AND THE DEFENDANT'S WRITTEN STATEMENT MADE TO DETECTIVE MAUTE, SHOULD HAVE BEEN SUPPRESSED. (RAISED IN PART BELOW).

(A)

WHEN THE POLICE DEVELOP EVIDENCE THAT AN INDIVIDUAL WHO IS BEING DETAINED PURSUANT TO THE EMERGENCY AID DOCTRINE IS A SUSPECT IN A CRIMINAL INVESTIGATION, THE POLICE MUST ADVISE THAT INDIVIDUAL OF HIS MIRANDA RIGHTS BEFORE QUESTIONING HIM.

(B)

THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT'S WRITTEN STATEMENT WAS ADMISSIBLE BECAUSE THE RECORD LACKS AN ADEQUATE EVIDENTIAL FOUNDATION (NOT RAISED BELOW)

POINT II

THE TRIAL COURT'S RULING PRECLUDING THE DEFENDANT FROM ADMITTING PROOF OF JUAN RAMOS'[S] CRIMINAL CONVICTION FOR CONSPIRACY TO DISTRIBUTE DRUGS CONSTITUTED REVERSIBLE ERROR.

(A)

THE TRIAL COURT'S RULING EXCLUDING THE EVIDENCE PRECLUDED THE DEFENDANT FROM ESTABLISHING REASONABLE DOUBT AS TO HIS GUILT.

(B)

THE TRIAL COURT'S RULING VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

POINT III

DR. FALZON'S TESTIMONY THAT HE DETERMINED THE MANNER OF DEATH TO BE HOMICIDE WAS PLAIN ERROR (NOT RAISED BELOW)

POINT IV

ADMISSION OF THE COLLECTIVE "HE'S THE ONE WHO SHOT MY FRIEND" STATEMENT OF THE CROWD THAT WAS CHASING THE DEFENDANT UNDER THE "EXCITED UTTERANCE" DOCTRINE CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

POINT V

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY THAT IT COULD REJECT THE STIPULATIONS THAT WERE READ INTO THE RECORD (NOT RAISED BELOW)

POINT VI

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE THE HYPOTHETICAL SCENARIOS USED BY THE PROSECUTOR IN SUMMATION MISREPRESENTED THE FACTS AND DILUTED THE STATE'S BURDEN OF PROOF (NOT RAISED BELOW)

POINT VII

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION.

(A)

THE TRIAL COURT FAILED TO ARTICULATE ADEQUATE REASONS FOR IMPOSING A BASE SENTENCE ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM SENTENCE OF 30 YEARS.

(B)

IN IMPOSING THE 35 YEAR BASE TERM ON COUNT ONE AND THE 5 YEAR BASE TERM ON THE DEFENDANT'S CONVICTION FOR UNLAWFUL POSSESSION OF A WEAPON ON COUNT THREE THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHTS UNDER BLAKELY V. WASHINGTON, AND STATE V. NATALE.

(C)

THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE 5 YEAR SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR UNLAWFUL POSSESSION OF A WEAPON ON COUNT THREE CONSECUTIVE TO THE SENTENCE IMPOSED ON COUNT ONE.

We affirm defendant's convictions but are constrained to reverse and remand for re-sentencing on count three as required by State v. Natale, 184 N.J. 458 (2005), and for the imposition of a concurrent sentence on count three.

Defendant shot Juan Ramos in the back and killed him. He claimed he acted in self-defense. Defendant explained that he went to a liquor store to buy lottery tickets and, while walking home, he passed a group of men "hanging out" in front of a bodega. One of the men threw a paper wrapper at him. When he got home, he called his brother and asked his brother to go back to the store with him. He also retrieved a gun from between the mattresses of his bed and took it with him. Defendant and his brother met at the bodega and saw the same group of men standing outside. Defendant walked into the bodega and the man who threw the paper wrapper at him walked in behind him. While inside the store, the man pushed and grabbed defendant by the throat. The man then walked outside and hit defendant's brother, causing him to fall. When defendant came outside, another man hit him in the face and they started fighting. Defendant then stated that "all of a sudden, I saw my father on the ground; I don't know how he got there. That's when I lost it and grabbed the gun from my waistband and shot the guy when he was running away from me."

After the shooting, several of Ramos's friends tackled defendant, disarmed him and beat him. Officer John Grandez arrived at the scene and saw a group of fifteen to twenty people chasing defendant, with an angry crowd of sixty to eighty people watching. Grandez heard several people shout, "He's the one who shot my friend." Grandez saw that defendant had facial injuries, so he placed defendant in the back of his police car "for his own safety." Grandez had no further conversation with defendant, and did not handcuff, arrest, or search him. Grandez called for police assistance to help control the crowd and for medical assistance for defendant.

Detective Keith Rotsaert arrived at the scene and was informed that defendant might have been involved as a witness or victim. He was not informed that a crowd had been chasing defendant or accused him of shooting Ramos. Rotsaert walked over to defendant, who was still seated in the rear of the patrol car, and asked him in English how he was. Defendant responded in broken English. Rotsaert had difficulty understanding defendant, so he asked Grandez, who spoke Spanish fluently, to interpret. With Grandez interpreting, Rotsaert asked defendant what happened. Defendant stated that he had gone to a grocery store and was jumped by a group of people who began to beat him up. Defendant then paused and stated, "I shot someone in the back." Rotsaert immediately stopped questioning defendant and instructed Grandez to tell defendant to stop talking. He also instructed Grandez to advise defendant of his Miranda rights. Grandez did so and read the Miranda rights to defendant from a card written in Spanish. Defendant indicated that he understood his rights. No further on-the-scene questioning took place.

Defendant eventually was taken to the police station. When defendant arrived at the police station, Detective Pablo Maute verbally read each and every right on the Miranda rights form to defendant in Spanish. After each right, Maute asked defendant if he understood the right and defendant responded, "Yes." Defendant memorialized each response by writing "Si" on the form and placing his signature next to it.

Maute also read the Waiver of Rights portion of the Miranda rights form to defendant in Spanish. After reading the waiver, Maute asked defendant if he understood, and defendant responded "Yes." Defendant memorialized his response by placing his signature next to it. Maute also signed the form and Detective Michael Cossari witnessed defendant's signature. Maute then asked defendant if he read his Miranda rights and signed the form stating the he understood his rights. Defendant responded, "Yes." Maute also asked defendant if he read the waiver portion of the form and signed it stating he wished to waive his rights and speak to Maute without an attorney. Defendant responded, "Yes." When Maute asked him if he understood that he may stop answering questions at any time during his statement, defendant also responded, "Yes". Defendant acknowledged that with his rights in mind, he wished to continue with his statement and answer further questions. Defendant then provided a sworn written statement in which he admitted he "shot the guy when he was running away from me." The statement was read back to defendant in Spanish by Officer Jose Santiago. Defendant initialed each page and signed it.

Defendant moved to suppress his on-the-scene statement, "I shot someone in the back." After a Miranda hearing, the trial judge concluded defendant's on-the-scene statement was admissible because it was not the product of an interrogation and was made pursuant to the emergency aid doctrine.

On appeal, defendant first challenges the admissibility of his on-the-scene statement, made prior to receiving his Miranda rights. When reviewing a defendant's claimed trial errors after conviction, we examine each challenge to determine whether the trial court erred. Under Rule 2:10-2, an error below will not cause reversal unless it is "clearly capable of producing an unjust result." Ibid.; State v. Macon, 57 N.J. 325, 337 (1971). Trial errors are considered "harmless" unless there is a reasonable doubt that the error contributed to the verdict, even if the error is of constitutional dimension. Macon, supra, 57 N.J. at 338; see also State v. Slobodian, 57 N.J. 18, 23 (1970). If the error is of constitutional dimension, then the State must show "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710 (1967).

Defendant concedes that statements made to the police pursuant to the emergency aid doctrine are not subject to suppression under Miranda because they are not made under the coercive atmosphere of a custodial interrogation. State v. Boretsky, 186 N.J. 271, 281 (2006). Defendant argues, however, his on-the-scene statement should have been suppressed because he was in custody at the time he made the statement and did not receive a Miranda warning. We disagree.

On-the-scene statements and admissions made by a defendant to police prior to receiving a Miranda warning are admissible where a defendant, although not free to leave the scene, was not yet under custodial interrogation. State v. Gosser, 50 N.J. 438, 445-46 (1967), cert. denied, 390 U.S. 1035, 88 S. Ct. 1434, 20 L. Ed. 2d 295 (1968). General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by the requirements of the Miranda rule. Ibid.

Defendant does not dispute the facts surrounding his interaction with the police at the scene. Based upon those facts, defendant's on-the-scene statement clearly falls within the Miranda exception under Gosser because Rotsaert conducted a "general on-the-scene questioning as to facts surrounding a crime" at the time defendant made the statement, "I shot someone in the back." Therefore, defendant was not entitled to a Miranda warning during this "general on-the-scene questioning."

Defendant contends for the first time on appeal that the trial judge improperly admitted the written statement he gave at the police station. He argues that there was an insufficient evidential basis for admitting the statement because there was no evidence that showed with specificity exactly what rights were read to him. We disagree.

The police issued defendant his Miranda rights at the scene and at the police station, and he acknowledged both times that he understood his rights. He also signed a Miranda waiver form, indicating that he understood his Miranda rights and knowingly and voluntarily waived them. Maute read that form into the record at the Miranda hearing and testified that he read each and every right on the form to defendant and defendant handwrote "Si" on the form to acknowledge that he understood each of those rights. Defendant offered nothing to dispute the State's evidence presented at the Miranda hearing. The record, therefore, clearly supports the trial judge's finding that defendant properly received his Miranda rights and knowingly, intelligently, and voluntarily waived them prior to giving his sworn written statement.

Defendant next contends that the trial judge improperly precluded him from admitting evidence of Ramos's criminal conviction for conspiracy to distribute drugs. He argues that because he claimed to have acted in self-defense, he should have been permitted to admit this evidence to show that Ramos had a propensity for aggression.

When a defendant asserts the legal justification of self-defense, the "victim's conviction of a violent crime may be admitted to establish that he was the aggressor." State v. Aguiar, 322 N.J. Super. 175, 183 (App. Div. 1999). The term "violent crime" is not specifically defined in the New Jersey Criminal Code or by New Jersey case law. Although not controlling, the definition of a "violent crime" under the United States Criminal code is instructive here. 18 U.S.C.A. 16 defines a "crime of violence" as:

(a) an offense that has an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Federal courts have held that drug trafficking offenses do not fall within this definition. United States v Cruz, 805 F.2d 1464, 1474 (11th Cir. 1986), cert. denied, 481 U.S. 1006, 107 S. Ct. 1631, 95 L. Ed.2d 204(1987); United States v. Diaz, 778 F.2d 86, 88 (2nd Cir. 1985). Moreover, the use of physical force is not an element of a conspiracy, N.J.S.A. 2C:5-2, nor is a conspiracy conviction among the violent crimes subject to an eighty-five percent parole ineligibility period. N.J.S.A. 2C:43-7.2d. Therefore, we find no error in the trial judge's exclusion of Ramos's prior conviction and affirm defendant's convictions.

Defendant's remaining arguments are without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). We add these limited comments.

The medical examiner who performed Ramos's autopsy never testified that defendant was guilty. He only testified that the cause of Ramos's death was a gunshot wound to the back and the manner of death was homicide. This testimony was admissible. State v. Baluch, 341 N.J. Super. 141, 184-85 (App. Div.), certif. denied, 170 N.J. 89 (2001).

The statement of the crowd that defendant "shot my friend" was admissible as an excited utterance, as was the testimony of a police officer summarizing the statements of eyewitnesses at the scene. N.J.R.E. 803(c)(2); State v. Reese, 288 N.J. Super. 133, 137-38 (App. Div. 1996).

The jury instruction about the parties' stipulations was proper. The trial judge explained to the jury that the parties agreed to certain testimony and evidence but not to the facts underlying that testimony and evidence. The trial judge did not tell the jury that they were bound by the facts set forth in the stipulations. See State v. Wesner, 372 N.J. Super. 489, 494-95 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005).

The prosecutor's hypothetical scenario in his summation was not improper because it was reasonably related to the scope of the evidence presented. State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); State v. Frost, 158 N.J. 76, 82 (1999). As long as prosecutors confine their arguments to the facts of the case and the reasonable inferences to be drawn therefrom, "what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal.'" Ibid. (quoting State v. Johnson, 31 N.J. 489, 510 (1960)).

We now address the challenges to defendant's sentence. We disagree with defendant's contention that the trial judge erred in imposing a thirty-six year prison term. There were ample reasons for imposing that sentence and the trial judge articulated those reasons and properly identified the mitigating and aggravating factors under State v. O'Donnell, 117 N.J. 210, 215 (1989). In addition, murder has no presumptive prison term because that crime carries a maximum of life in prison. State v. Abdullah, 184 N.J. 497, 508 (2005).

We agree, however, with defendant's contention that the trial judge erred in imposing a five-year base term sentence on the third degree unlawful possession of a weapon conviction (count three). The former presumptive term at that time on a third degree crime was four years. Natale, supra, 184 N.J. at 466. We also agree that the trial judge erred in imposing consecutive, instead of concurrent sentences, for the murder and weapon convictions. Copling, supra, 326 N.J. Super. at 411-42; see also State v. Yarbough, 100 N.J. 627, 646-47 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded by statute in part, N.J.S.A. 2C:44-5a. Therefore, we reverse and remand to the trial court for the imposition of a concurrent four-year sentence on count three.

We affirm defendant's conviction and sentence on count one, and reverse and remand for re-sentencing on count three.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The Miranda rights card used by Grandez was marked into evidence at a Miranda hearing held on July 20, 2004.

The Miranda rights form was marked into evidence at the Miranda hearing.

(continued)

(continued)

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A-3850-05T4

November 2, 2007