STATE OF NEW JERSEY v. GRACIANO MARTINEZ ROSALES

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0232-06T4A-0232-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GRACIANO MARTINEZ ROSALES,

Defendant-Appellant.

______________________________

 

Submitted April 27, 2009 - Decided

Before Judges Carchman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1716.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a ten-day jury trial, defendant Graciano Martinez Rosales was found guilty of aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), as a lesser-included offense of murder, and of hindering apprehension in providing false information to a law enforcement officer, N.J.S.A. 2C:29-3(b)(4). Defendant was sentenced to a twenty-year prison term on the aggravated manslaughter conviction, with an 85% parole ineligibility period pursuant to N.J.S.A. 2C:43-7.2, plus a concurrent four-year term on the conviction of hindering apprehension. Defendant now appeals the convictions and his sentence. We affirm.

I.

The indictment in this case arose out of the stabbing death of a woman in Perth Amboy in July 2004. We summarize the pertinent facts that emerged at trial.

On July 27, 2004, defendant and his friend, Pedro Merino Ventura, entered the basement of Carolyn Arrington who resided in an apartment at 285 Bertrand Avenue in Perth Amboy. The basement was a common area, shared by other tenants in the building. Defendant and Ventura arrived with the expectation of having sex with Arrington for money, which Ventura alleged had previously occurred.

Upon arriving at Arrington's residence, Ventura remained on the steps leading to the basement while defendant, in the basement, negotiated with Arrington about the price of the sex. Arrington, who Ventura could see from the steps, remained in her clothes while she spoke with defendant. At some point during that discussion, Arrington was stabbed, causing her to scream. The ensuing autopsy revealed that Arrington was stabbed forty-two times in total.

After Arrington fell in a face-up position, her assailant turned her body over so that she was laying face-down. The two men then left the residence. As he departed, defendant allegedly placed the knife in a garbage can behind Arrington's residence.

Nine days later, on August 5, 2004, other tenants within the apartment building noticed a strong odor emanating from the basement. Upon being apprised of the odor, the owner of the building, Ghassan Atieh, went to the basement to determine its source. Atieh observed a body at the bottom of the stairs. He immediately called the police.

In response to the call, Lieutenant Phillip Terranova of the Perth Amboy Police Department (the "Department"), arrived at the apartment building. He recovered Arrington's body, which at that point was at an advanced stage of decomposition. The basement was in disarray, with blood spray and splatter found throughout.

Subsequently, the Department assigned the investigation of the apparent homicide to Detective Steven Killane. Upon being assigned the case, Detective Killane interviewed David Ortiz, Arrington's boyfriend, but he was unable to derive any substantive leads from Ortiz. As his investigation progressed, Detective Killane learned that Ventura, who lived in the same apartment building as Arrington, might have relevant information about the circumstances of Arrington's death.

On August 7, 2004, Detective Killane interviewed Ventura. Ventura consented to a search of his apartment, which resulted in the police finding a marijuana pipe. Ventura was subsequently arrested on charges of possession of drug paraphernalia. Later that same day, Geronimo Rojas Lopez, Arrington's neighbor, informed the police that he had observed defendant running from the building shortly after he heard the stabbing victim scream.

The next day, August 8, Detective Killane arrived at defendant's apartment with three other officers and asked defendant if he would consent to an interview. The detective informed defendant that he was investigating a homicide. Defendant was transported to the Department's headquarters for questioning, but he was not yet placed under arrest.

Prior to questioning, defendant was apprised of his Miranda rights in Spanish and he signed a card (also written in Spanish) acknowledging his waiver of those rights. Afterward, he was questioned by Eleazar Ricardo, an investigator with the Middlesex County Prosecutor's Office for approximately thirty-five minutes. Nothing of consequence occurred during that initial interview and nothing was reduced to writing.

The police next sought to have defendant undergo a polygraph examination. Defendant agreed, but in light of his language limitations, the investigators informed defendant that he would be questioned during the polygraph by a Spanish-speaking female officer, Sergeant Irma Alvarez. Defendant was informed, however, that Sergeant Alvarez would not be available until 2:30 p.m. that day. He decided to wait at the police station, where he was provided with food.

Thereafter, at approximately 2:25 p.m. on August 8, the police drove defendant to the Middlesex County Prosecutor's office. Once there, Sergeant Alvarez issued a second set of Miranda warnings to defendant. At 3:15 p.m., defendant again waived his rights. Defendant underwent the polygraph examination. As a result of that procedure, Sergeant Alvarez believed that defendant had been lying.

Six hours later at approximately 9:00 p.m., Investigator Ricardo issued defendant a third set of Miranda warnings. Again, defendant waived his rights. He subsequently provided a taped statement ("the First Statement").

In that taped statement, defendant admitted to having sex with Arrington on five or six prior occasions. He also admitted to having sex with her on the night she was killed, in exchange for fifteen dollars. He claimed that just after having sex, he had observed a young, dark-skinned male at the top of the basement steps. Defendant described the male as wearing blue pants, a checkered shirt, and a blue hat.

Defendant contended in his First Statement that he had gone to the premises to visit Ventura at Ventura's apartment. Just after leaving the apartment, defendant allegedly heard a woman screaming. As a result, he ran out the back door of the building, jumped a fence, and ran down Market Street. Defendant claimed that several days later, he returned to Ventura's apartment and noticed a bad odor coming from the building. As a result, he opened the basement door and observed Arrington laying at the bottom of the stairs.

Following his first taped statement, defendant agreed to return to the Department's headquarters to view photographs of potential suspects matching the description of the young man that he had provided.

Meanwhile, Ventura was brought to the police station. He admitted that he saw defendant kill Arrington. Following Ventura's statement, Investigator Ricardo told defendant that Ventura had told the truth to police about the killing, and that defendant likewise needed to be truthful.

By this point in time, it was past midnight, into the early morning hours of August 9. At 12:18 a.m., defendant was given a fourth set of Miranda warnings, and he again waived his right to remain silent.

This time defendant provided a statement ("the Second Statement") with a different and far more inculpatory account of the events. He told the investigators that he had made an agreement with the victim for sex. He added that they agreed to a price of ten dollars. The victim allegedly demanded more money, and he refused to pay more. She then slapped him. Defendant admitted that, at that point, he lost control, and that he had stabbed Arrington with a "blade." According to his Second Statement, defendant became scared after the stabbing and ran from the apartment complex. He told the investigators that he did not intend to kill Arrington and that her death was an accident. As a result of defendant's confession in his Second Statement, the police arrested defendant and charged him with murder.

A grand jury subsequently indicted defendant, charging him with murder, N.J.S.A. 2C:11-3(a)(1) to (2) (Count I); possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d) (Count II); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count III); and hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4) (Count IV). Defendant was not released on bail pending trial, and he remained confined at the Middlesex County Jail.

In January 2006, while defendant was at the County Jail, he became acquainted with another inmate, Bernard Dickens. According to Dickens, he and defendant became friendly with one another, and at one point Dickens exchanged "two soups" for having defendant give him a tattoo. During one of their mutual conversations, which Dickens contended took place in English, not Spanish, defendant allegedly told Dickens that he had "poked her [Arrington] up." According to Dickens, this comment meant that defendant had stabbed Arrington. Defendant also allegedly told Dickens that he had thrown the knife used in the stabbing into the water on Front Street. Dickens added that defendant had said to him "[t]hey don't got too much on [me], [I'm] going with the insanity plea." Following that jailhouse conversation, Dickens contacted the Prosecutor's Office to inform them of defendant's admissions.

The trial judge conducted three days of pretrial hearings examining whether or not defendant's confession had been validly obtained. The judge first heard from Investigator Ricardo, who detailed the timing and circumstances of defendant's custodial interrogation. Ricardo also confirmed the series of Miranda warnings that defendant had received.

The court next heard testimony from a forensic psychiatrist, Dr. Robert Latimer, who the defense had retained as an expert witness. The court permitted Dr. Latimer to offer expert testimony at the Miranda hearing, without then resolving whether Dr. Latimer would be permitted to testify before the jury at trial if defendant's confession were not suppressed. Dr. Latimer, who is fluent in Spanish, has been in the private practice of psychiatry in the State of New Jersey since 1961. He is a Diplomate of the American Board of Psychiatry and Neurology and the American Board of Forensic Psychiatry, and he has been a member of the State Board of Medical Examiners. At the time of his pretrial testimony, Dr. Latimer was a consulting psychiatrist to Prison Health Services, and he also treated patients at his private office and at a halfway house. The State did not object to Dr. Latimer's qualifications for purposes of the Miranda hearing.

Dr. Latimer described to the trial judge his several interviews of defendant. During the course of those interviews, defendant related to Dr. Latimer various acts and statements by the police that allegedly took place during his custodial interrogation. For example, defendant told Dr. Latimer that the police had supposedly said to him at one point that "you have five minutes to live and that's it." Defendant also told Dr. Latimer that the police had promised defendant that they would "get him a job." The police also allegedly threatened that "an electric chair was coming" and, at one point, the investigators picked up the phone, dialed someone, and were arranging for defendant to be picked up to "go to the electric chair." Defendant also informed Dr. Latimer that Sergeant Alvarez had told him that the polygraph would reach into the "deepest part of [his] soul."

Dr. Latimer opined that such interrogation tactics, if they had actually occurred, "would have been very frightening, very demoralizing and it would have overcome [defendant's will]." The psychiatrist further recounted that defendant had told him that "he had never seen [the victim], didn't know who she was, had never had sex with her."

According to Dr. Latimer, defendant was "suffering from anxiety and depression as a result of the - of the ordeal that he was going through. And he [defendant] also described an episode of acute panic and fear during interrogation." He acknowledged, however, that defendant did not suffer from a personality disorder or a physical disorder.

Ultimately, Dr. Latimer concluded in his pretrial testimony:

It is my opinion that his situation during what seems to me, as a lay person, as a custodial situation in which he was held, interrogated, frightened and threatened with immediate death or death at a later time, was of such a nature as to impart in him a substantial fear that he was in danger and that he had to somehow get out of that situation. And this anxiety was sufficient for him to overcome his fear of making an admission. So the anxiety of being under threat of death caused him to lose his will and he was overcome by this and issued a false confession. That's my clinical impression.

[(Emphasis added).]

The State presented at the Miranda hearing a forensic psychologist, Dr. Guillermo Parra. Dr. Parra, whose qualifications as an expert witness were not challenged by defendant and were accepted by the trial court, has been a licensed psychologist in New Jersey since 1989. Dr. Parra maintains a private practice and also works as a forensic psychologist at Northern State Prison through the University of Medicine and Dentistry of New Jersey. He serves as a consultant at a diagnostic center for felons awaiting release into the community.

Dr. Parra evaluated whether defendant was coerced at the time he provided a confession to the police. He noted that defendant had no history of any "medical disorder, psychological disorder, [or] psychiatric disorder." Dr. Parra relayed that defendant had told him that the police came to his house and handcuffed him. During those events, defendant claimed that he felt "threatened" and "scared."

Dr. Parra opined that:

the objective findings dispute any belief that [defendant] is an individual with limited intellectual abilities. This is an individual whose reasoning ability or ability to engage in abstract thinking is equivalent to that of an adult, young adult. His ability to engage in -- to read and understand written -- written material is equivalent to an individual with one year of college education.

Dr. Parra added:

I did not agree with Dr. Latimer's conclusion that [defendant's] will was -- will was overturned. I also don't -- found no evidence of depression, which was part of -- part of his diagnosis [by Dr. Latimer]. I did find evidence of anxiety, which was part of his diagnosis. And I do agree with his conclusion that there is adjustment reaction, although I think that, as I said before, that is primarily situationally related. An adjustment disorder is a disorder situationally related. You take the person out of that situation, and the symptoms will disappear.

The trial judge also heard testimony at the Miranda hearing from defendant himself, who was examined with the aid of a Spanish interpreter. Defendant denied that the police read him his rights before questioning him at the police station. He also disclaimed his signatures on the Miranda waiver forms. Defendant contended that one of the police officers who questioned him, a Puerto Rican, (apparently referring to Detective Piniero) yelled and pounded the table in an effort to get defendant to admit to killing Arrington. That officer also supposedly accused defendant of being mentally retarded.

Defendant testified that he was afraid during the police interrogation. He contended that the police told him that the judge was "going to send [defendant] to the electric chair" if he did not tell the truth. After the detectives played for defendant the tape recording of Ventura's own statement, they allegedly told him that he "should confess to everything, that [he] didn't have to lie anymore because Pedro [Ventura] had told them everything that had happened."

Ultimately, defendant gave the police a statement, which was tape recorded, admitting that he had killed Arrington. He claimed that his statement was untrue, and that he had only admitted to the killing because he was afraid and because the police had threatened to have him sent to the electric chair.

On cross-examination in the Miranda hearing, defendant noted that he had gone to bed at about 9:00 p.m. on the night before the police awakened him. He acknowledged that during the police questioning, he was fed and was allowed to use the bathroom whenever he needed to do so. Defendant denied that he was ever physically abused by the officers. He also conceded that questioning took place in a "normal" sized room. Defendant recognized his voice on his tape-recorded statement. He conceded that he never saw or heard any news reports in this country about a person being sent to an electric chair.

After considering this pretrial testimony, the trial judge ruled that defendant's confession was knowing and voluntary. He therefore denied defendant's motion to suppress the confession from admission at trial. The judge found that the police and prosecutor's office had acted in a proper manner and that the confession was validly obtained. Specifically, the judge noted:

I'm satisfied that the State has proven beyond a reasonable doubt the defendant knowingly and intelligently and voluntarily waived his rights on more than one occasion, frankly, and that his will was not overborne.

The court finds, frankly, that the defendant's testimony regarding the nature of the interviews is directly in contrast with the police testimony in several respects but I find the defendant's testimony to be lacking in credibility.

With respect to the testimony of the competing experts, the

trial judge found:

Dr. Parra's testimony [to be] more persuasive than Dr. Latimer. Dr. Latimer admittedly based his assessment of the defendant's mental statement pretty much on the defendant's statements. He admitted that his opinion was based on the defendant's direct statements to him that he had been threatened with death that he had been threatened with other harm, and, therefore, it would be easy to understand how Dr. Latimer could reach a conclusion if he assumed those threats to be true.

Again, the court does not find that those threats were made.

. . . .

I also find that Dr. Parra based his assessment of the defendant and his mental state on other evidence of police reports, but he also gave the defendant certain objective tests and did not in any way find him to be mentally impaired or having any type of mental defect that would make it impossible for him to in any way validly waive his rights.

Despite his lack of success in the Miranda hearing, defendant moved in limine to have Dr. Latimer permitted to testify at trial on the subject of false confessions. In particular, the defense sought to have Dr. Latimer address the jury about whether the police interrogation techniques utilized in this case had generated a false confession. The State opposed the presentation of Dr. Latimer's trial testimony, contending that the defense psychologist's opinions were based on "generalities" and were not tied to a "recognized clinical diagnosis" of defendant.

After considering briefs from counsel and oral argument, the trial judge denied defendant's in limine application. In his oral ruling on the issue, the judge incorporated by reference the findings he had made after the Miranda hearing concerning the voluntariness of defendant's confession. The judge further determined that Dr. Latimer's proffered trial testimony was inadmissible under controlling precedent, particularly State v. Free, 351 N.J. Super. 203 (App. Div. 2002) (sustaining the exclusion of testimony by a proposed defense expert, a psychologist, who sought to refer to general studies documenting instances of false confessions in various states, as proof that the defendant's confession was unreliable).

Comparing Dr. Latimer's expert report to the proposed defense expert on confessions in Free, the trial judge observed:

I believe for the reasons set forth in Free that in this case there is no expertise on this subject that has been accepted as reliable by the scientific community; that Dr. Latimer based upon the report submitted to the Court has not proffered any type of scientifically reliable evidence that would assist the trier of fact. The credibility questions that have to be determined by the trier of fact in this case really have to do with common sense. There is no body of scientific knowledge that would assist a jury any more and indeed having an expert testify with a cloak of scientific expertise when there really isn't any that's on point here would tend to cause the jury to be misled and not assisted.

. . . .

For all those reasons, counsel, I believe that the defense's request to have Dr. Latimer testify as an expert in the field of false confessions must be denied.

The case proceeded to trial, which consumed ten intermittent days in April and May of 2006. Because no DNA or fingerprint evidence linked defendant to the killing, the State relied primarily on the trial testimony of Ventura inculpating defendant, as well as the police detectives and investigators who had been involved in obtaining defendant's recorded confessions. With respect to the latter, the jury heard the testimony of Investigator Ricardo, the lead investigator, as well as from Detective Killane, and another investigator, Vergil Angelini. The State also presented testimony from the county medical examiner and from various lay witnesses, who chronicled the initial discovery of the victim's body and the odors emanating from the basement. In addition, the State called Dickens, the jailhouse informant, who related defendant's statements to him admitting to the killing.

During the course of their trial testimony, Investigator Ricardo and Detective Killane detailed the circumstances that led to defendant's formal confession. Investigator Ricardo testified that defendant voluntarily came to the police station with the investigators on August 8, 2004, and that he remained there while waiting for Sergeant Alvarez to arrive at the prosecutor's office until 2:30 p.m. Ricardo recalled that everyone was "pleasant" to defendant and that no threats were made to him. Ricardo did acknowledge that defendant was crying and that he had to "gather himself" prior to recording his Second Statement at around midnight on August 9.

Detective Killane had transported defendant initially to the police headquarters and then later to the prosecutor's office. He testified that he had not heard any yelling during defendant's questioning, either at the police station or at the prosecutor's office. He denied questioning defendant himself.

Ventura's trial testimony was particularly compelling and inculpatory. Ventura told the jury that both he and defendant had sex with Arrington on several occasions prior to the night of her death. He testified that the trio would go to the basement of Ventura's building, where the two men would have sex with Arrington for money. Ventura recalled that, on the night of the stabbing, Arrington had disrobed, defendant offered to give her $10, but she requested $30. Ventura perceived that sexual relations then occurred between defendant and Arrington, based upon Ventura's belief that defendant had thrown a condom on the floor when he and Arrington were finished.

Ventura recalled that, as Arrington was getting dressed, she requested more money from defendant and then smacked him. In response, defendant stabbed Arrington repeatedly with a knife. Ventura recalled that defendant turned Arrington's body face down, left through the rear of the building, and disposed of the knife in a garbage can. Ventura also stated that defendant was "going to say that I [Ventura] had killed her" if he [Ventura] reported the murder to anyone.

On the morning of Ventura's testimony, the trial judge preliminarily advised counsel that he would not allow the State to elicit testimony from Ventura about an alleged threatening letter that defendant's father had presented to Ventura. After hearing Ventura's direct examination regarding the events surrounding Arrington's killing, the court adjourned that day for lunch. Thereafter, the prosecution notified the trial judge that it would be filing a complaint against defendant's father for tampering with Ventura. Accordingly, the prosecution, in an attempt to explain his nervousness on the witness stand, sought to question him about the threat contained in the letter. Over defense counsel's objection, Ventura testified before the jury regarding the threat.

Ventura indicated that approximately two weeks prior to his trial testimony, a thin gentleman had approached him. The gentleman showed him a letter. The letter stated that "if [Ventura] was not to tell the truth that they know [his] family, [his] brother, that he could be killed." Ventura added that he was not nervous about the threat, but that he was concerned for his family. On re-direct examination Ventura noted, without any objection from defense counsel, that the letter was written in Spanish and that he was told that "Chano [defendant] had sent it." Notably, although the trial judge and counsel were aware that defendant's father was the person who had handed Ventura the letter, that particular fact was not made known to the jury.

The defense called two witnesses. First, it presented Joseph Brown defendant's employer, as a character witness. Brown, a landscaping contractor, testified that defendant (who he referred to as "Chano") was punctual and never presented any problems at work.

Defendant took the stand in his own defense. Despite having made multiple confessions, he emphatically denied killing Arrington. He testified that prior to August 8, 2004, he had only been to Ventura's apartment twice, had never engaged in sexual acts with Arrington and, in fact, had never seen her.

Defendant recalled that on the morning of August 8, 2004, two police officers took him and his cousin to the police station in handcuffs. Consistent with his allegations at the Miranda hearing, defendant maintained that while he was at the police station, one of the officers "hit the table" and asked him if he was a "retard" because he "didn't remember whether or not [he] had killed this woman." Defendant recalled that the police officers told him that a camera had caught him running from the scene. Later, while at the prosecutor's office, defendant was allegedly told that "in five minutes the judge was coming with an electric chair and that he'd give [defendant] the electric chair if [he] didn't tell them who had killed the woman." Therefore, defendant recalled, he admitted to killing Arrington out of fear.

According to defendant, after making his first final statement to the police, he observed officers bring Ventura into a room. He recalled that the police told him that Ventura had given a truthful account of how defendant had killed Arrington. Defendant recalled feeling "alone" at this point and crying, because everyone "pointed their fingers" at him. Consequently, at 12:05 a.m., he signed the Miranda waiver form. Defendant also claimed that the information contained in his Second Statement was all provided to him by the police. He denied making any confession to Dickens.

Summations and the jury charge took place on May 3, 2006. At 1:45 p.m. that day, deliberations began. At approximately 3:30 p.m., and then again at 3:40 that day, the trial judge received notes from the jury, requesting that defendant's confession be replayed and also a readback of Ventura's testimony. The judge suggested that the jury return the following morning, May 4, to hear the requested items.

As anticipated, the jury returned the following day and heard playbacks of the two tapes of defendant's confessions. The jury also was provided, as requested, with a readback of Ventura's trial testimony. The jury broke for lunch at 1:30 p.m. and upon returning, deliberated for the remainder of the day.

On May 5, the jury returned for a third day of deliberations. At 2:05 p.m., the jury presented the trial judge with another note, which stated:

Dear Judge DeVesa, we appear to be deadlocked 10-2. Any suggestions would be very much appreciated as the tension level is becoming quite high. Many thanks, members of the jury.

Upon receiving this note, the judge proposed instructing the jury with the relevant Model Jury Charge, "Further Juror Deliberations." Defendant opposed that suggestion and instead requested a mistrial.

After denying the mistrial application, the trial judge addressed the jurors in open court, instructing them as follows:

The first thing I do want to remind you of, jurors, is that I earlier, in my instructions, mentioned to you that in the event that you write a note to the [c]ourt you should not in any way disclose your thoughts or your leanings in the case, that those are to remain confidential. So, if there's going to be another note of any sort you shouldn't be telling us what the votes are shaping up to be.

First of all, they [your tentative votes] are not final, and secondly, we should not be given any sense of the way you are leaning until you ultimately reach your verdict or declare that you are unable to reach a verdict.

Now, with respect to the difficulty you are having in reaching an agreement. There are some additional instructions that by law I should give you at this time. They are simply as follows.

It is your duty as jurors to consult with one another and to deliberate with a view towards reaching an agreement if you can do so without violence to your individual judgment. Each of you has to decide the case for yourself but you should do so only after a truly impartial consideration of all of the evidence with your fellow jurors.

In the course of your deliberations you should not hesitate to reexamine your views and change your opinion if you become convinced that your earlier opinion may have been erroneous, but you don't have to surrender your honest conviction as to the weight of the evidence solely because of the opinion of a fellow juror or jurors or for the mere purpose of returning a verdict. Most importantly, I ask you to keep in mind that you are not partisans, you are not adversaries, you are judges, and judges of the facts of the case and that's how you should conduct yourselves during your deliberations.

After receiving those instructions, the jury deliberated for the remainder of the day on May 5 without reaching a verdict. They were told to return on May 8.

On May 8, the jury resumed deliberations and returned its verdict. On Count I, the jury found defendant not guilty of murder (or of passion/provocation manslaughter), but instead found him guilty of the lesser-included offense of aggravated manslaughter. The jury additionally found defendant guilty on Count IV, hindering apprehension or prosecution. The jury found defendant not guilty of the weapons offenses charged in Counts II and III.

Subsequently, the trial judge sentenced defendant to a twenty-year prison term on Count I, with a four-year concurrent term on Count IV. The twenty-year sentence was made subject to an 85% period of parole ineligibility. The court also imposed customary fines and penalties. That same day, the trial court denied defendant's motion for a new trial.

In his present appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT ERRED IN PRECLUDING THE DEFENSE FROM ELICITING RELEVANT AND ADMISSIBLE EXPERT TESTIMONY PURSUANT TO N.J.R.E. 702 RELATING TO THE ISSUE OF FALSE CONFESSIONS

A. FACTUAL INTRODUCTION

B. SINCE THE EXPERT TESTIMONY DEFENSE COUNSEL SOUGHT TO ELICIT FROM DR. ROBERT LATIMER REGARDING THE ISSUE OF FALSE CONFESSIONS AS IT RELATED TO THE DEFENDANT SATISFIED THE REQUISITE CRITERIA OF N.J.R.E. 702, THE TRIAL COURT ERRED IN PRECLUDING THE DEFENSE FROM ELICITING SUCH TESTIMONY

POINT II

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO ELICIT TESTIMONY FROM ITS PRIMARY WITNESS REGARDING ALLEGED THREATS MADE TO HIM BY THE DEFENDANT'S FATHER

POINT III

THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUEST THAT THE COURT DECLARE A MISTRIAL, INSTEAD REQUIRING THE JURY TO CONTINUE DELIBERATIONS DESPITE ITS INDICATION IT WAS DEADLOCKEED

POINT IV

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE

For the reasons that now follow, we find none of those contentions to be persuasive.

II.

Defendant's principal argument on appeal is that the trial court erred in precluding Dr. Latimer from testifying before the jury in support of his claim that his confessions were false. Defendant maintains that the trial court misapplied the expert witness principles of N.J.R.E. 702 and case law in its preclusionary ruling.

In evaluating this argument, we are mindful of the three basic prerequisites for expert testimony, which our Supreme Court has repeatedly expressed in case law, both under current Evidence Rule 702 and former Evidence Rule 56(2). First, "the intended testimony must concern a subject matter that is beyond the ken of the average juror." Second, the field testified to must be "at a state of the art such that an expert's testimony could be sufficiency reliable." Third, the witness "must have sufficient expertise to offer the intended testimony." See State v. Kelly, 97 N.J. 178, 208 (1984) (distilling these requirements from former Evidence Rule 56(2)); see also State v. Jenewicz, 193 N.J. 440, 454 (2008) (applying the same three-part analysis under N.J.R.E. 702); State v. Townsend, 186 N.J. 473, 491 (2006) (same); State v. P.H., 178 N.J. 378, 395 (2004) (same); State v. R.W., 104 N.J. 14, 30-31 (1986) (same).

Defendant contends that Dr. Latimer's proposed testimony satisfied these three well-established criteria for admissibility. Defendant also contends that the trial court incorrectly analogized Dr. Latimer's opinions to those advanced by the defense expert in Free, supra, 351 N.J. Super. at 203. Defendant maintains that Dr. Latimer's proposed testimony was more akin to the opinions of the forensic psychiatrist who was permitted to testify about the unreliability of a defendant's confession in State v. King, 387 N.J. Super. 522 (App. Div. 2006). We disagree.

In Free, supra, a defendant charged with murder asserted that his confession to the police had been coerced. 351 N.J. Super. at 205. Before that confession, the defendant had been held by the police for seventeen hours in a small, barely-furnished room without being fed and had been told that he had failed a polygraph. Id. at 207-09. Defendant sought to present at trial an expert psychologist, who opined that, although confessions are generally reliable, "[o]ver the years . . . numerous cases have been documented involving people who were erroneously convicted and imprisoned on the basis of persuasive confessions to crimes they did not commit." Id. at 206. Relying on those general precepts, the defense psychologist concluded in his expert report that "[t]he highly coercive circumstances" under which the defendant had agreed to confess rendered his statements to the police "ambiguous and potentially unreliable." Id. at 250. The expert stated that the scenario in Free resembled other cases involving confessions later proven to be false. Ibid. Consequently, the expert opined that defendant's recorded statements "should be treated with extreme caution." Ibid.

The State moved in limine to bar the defense psychologist in Free, arguing that his testimony was improper under N.J.R.E. 702, and that the defense had failed to show that the psychologist's methodology was reliable. Ibid. The trial court substantially rejected those arguments and permitted the expert to testify, with some minor restrictions as to references to the polygraph results. Ibid.

In reversing the trial court's ruling in Free, we determined that the defense had not sustained its burden of showing that the expert's proposed testimony was admissible. Id. at 221. Our opinion examined similar cases arising in other jurisdictions. We concluded that the general opinions offered in the defense expert's report about involuntary confessions had not been shown to be "scientifically reliable." Id. at 220. Moreover, we found that the coercive factors listed by the expert, such as "isolation, persistent questioning, confrontation with real or fabricated evidence of guilt, and minimization of the consequences of confession" -- were all "matters that a jury would recognize as having a potential for causing a false confession." Id. at 220-21.

A far less general methodology was proffered by the defense expert in King, supra, 387 N.J. Super. at 522. There, the defendant confessed to committing a murder at a shopping mall, after he had been arrested and had confessed to an unrelated homicide. Id. at 528. Defendant had a long history of diagnosed personality disorders, including forty to fifty psychiatric hospitalizations since the age of nine. Id. at 532. Defendant maintained that the investigators who had interrogated defendant had capitalized on his mental disorders and psychological vulnerability in the manner in which they questioned him.

The defense in King retained a forensic psychologist to perform a clinical evaluation of defendant. The expert assessed whether defendant's mental disorders had materially affected the reliability of his incriminating statements to the police. The expert diagnosed defendant with an array of mental disorders, including Axis II narcissistic personality disorder, and antisocial personality disorder, "with characteristics of a borderline personality disorder at the time of interrogation." Id. at 532. The expert further diagnosed defendant with Axis I schizoaffective disorder, bi-polar type, although he found that particular disorder was largely asymptomatic at the time of his police interrogation. Id. at 533 n.6.

The defense expert in King correlated these diagnoses to the Diagnostic and Statistical Manual of Mental Disorders ("DMS-IV-TR"), a recognized authority published by the American Psychiatric Association. Id. at 532. He explained that the disorders had led the defendant to want to "impress and help the police" due to his clinically-documented "need for admiration, special treatment and grandiosity." Ibid. These emotional problems made the defendant "potentially vulnerable" to his interrogators, who took advantage of those mental disorders "very effectively" in prompting him to "confess to one unsolved crime after another." Ibid. Consequently, the expert concluded that the defendant's confession had been the product of his longstanding mental illness. Id. at 535.

The trial court permitted the defense expert's testimony in King. We sustained that determination, given the particular contours of the expert's methodology and opinions. Significantly, we distinguished the expert's testimony in King from that proffered by the defense psychologist in Free. Id. at 543. We observed that the doctor's opinions in Free had "merely pertained to the 'effects, in general, of police interrogation techniques.'" Ibid.

By contrast, the defense expert's testimony in King was predicated upon defendant's extensive psychiatric history, the expert's intensive clinical evaluation of the defendant through individualized interviews, and his reliance upon the DMS-IV as an authoritative treatise in the field. Id. at 543-44. As we noted, the expert in King specifically explained "how the DSM characteristics of [the defendant's] narcissistic and antisocial personality disorders manifested themselves in the specific characteristics of defendant's interrogation." Id. at 544. Given that scientifically-based foundation, we found "no evidentiary impediment" to allowing the expert to testify and opine about the reliability of the defendant's statements to the police. Id. at 546.

We stressed in King that the defense expert was not being offered to testify that defendant's confession was false or that his mental condition caused him to falsely confess. Id. at 540. Instead, the expert would help the jurors obtain "a better understanding of [the] defendant's mental condition at the time of the interrogation, and whether [his] personality disorder[s] impacted on [his] behavior and affected the reliability of [his] confession." Ibid.

Here, we agree with the State that the expert testimony proffered from Dr. Latimer in this case is akin to the opinions we excluded in Free and dissimilar to the testimony we permitted in King. Here, as in Free, defendant has no longstanding prior diagnoses of mental disorders. Dr. Latimer was unable to correlate defendant's confession to any such extant mental illness. Unlike the expert in King, Dr. Latimer's report makes no reference to the DSM-IV. Rather, Dr. Latimer alluded instead to more generalized notions of anxiety and fear on the part of the suspect being questioned by the police. His proffered testimony is not based upon a scientifically reliable authority, beyond the ken of an average juror, that general anxiety or fear may produce a false confession. We are satisfied that the trial judge did not abuse his discretion in rejecting such expert testimony. State v. Berry, 140 N.J. 280, 293 (1995).

III.

The second issue defendant raises on appeal is whether the trial judge committed reversible error by permitting Ventura to testify regarding the alleged threat made to him in the letter attributed to defendant. The State contends that the testimony was relevant and properly admitted because it bore on both Ventura's and defendant's credibility. We agree.

The admission of Ventura's testimony implicates N.J.R.E. 404(b), which provides that:

Except as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

[(Emphasis added); see also State v. Reeds, 197 N.J. 280 (2009).]

A recognized exemption from N.J.R.E. 404's general prohibition on character proofs, is not included in that Rule's illustrative list of exceptions, is "evidence of threats made by a defendant to induce a witness not to testify . . . ." State v. Buhl, 269 N.J. Super. 344, 364 (App. Div.), certif. denied, 135 N.J. 468 (1994). Such evidence is properly admitted "because it illuminates the declarant's consciousness of guilt." Ibid.; see also State v. Byrd, 198 N.J. 319, 324 (2009) (discussing the "significant challenge" that witness intimidation presents to the criminal justice system).

On numerous occasions, our courts have admitted proof of threats made to or tampering with a witness, notwithstanding the general constraints in Evidence Rule 404 relating to character proof. See, e.g., State v. Williams, 190 N.J. 114, 129 (2007) (holding that the defendant's post-shooting statements discouraging others from reporting what had happened should have been admitted by the trial judge because they were "classic consciousness of guilt evidence . . . ."); State v. Hill, 47 N.J. 490, 500 (1966) (admitting testimony that the defendant, after the trial had begun, had accosted a witness and had threatened to kill him if witness took the stand); State v. Johnson, 216 N.J. Super. 588, 611 (App. Div.) (finding no error allowing the prosecutor to establish that a witness was intimidated by the defendant while they were incarcerated together), certif. denied, 107 N.J. 647 (1987); State v. Lassiter, 197 N.J. Super. 2, 8 (App. Div. 1984) (permitting a witness to testify that he had been shot three days before defendant's case was scheduled for trial).

Lassiter, supra, is especially pertinent concerning the threat evidence in this case. In Lassiter, the defendant was charged with aggravated assault and murder of a prostitute. 197 N.J. Super. at 6-8. Three days prior to the November 1982 trial date, one of the State's witnesses, Richards, who was prepared to testify against the defendant, was shot three times in the back. Id. at 8. At trial, the court permitted Richards to testify about the attack upon him. Ibid. The record in Lassiter showed that, commencing around the end of October 1982, defendant, "both personally and through intermediaries, importuned Richards with offers of bribe money to make himself unavailable to the State when the case was moved for trial." Id. at 8. Defendant was "unquestionably anxious about Richards' testimony, and, in fact, told Richards, not to worry 'because I am going to take of all of this.'" Ibid. This statement was interpreted by Richards as meaning "'that [defendant] might be sending someone to get me.'" Reviewing this scenario, we held that the defendant's allegedly threatening statements "were inextricably related to the context within which [the defendant and the shooting victim] were carrying on their discussion, and the jury was free to decide for itself the extent of their ambiguity and whether defendant was expressing a covert threat." Id. at 9.

Here, as in Lassiter, where the State's witness did not see who had shot him before trial, there was no direct evidence of defendant's "bad act," i.e., defendant personally handing the threatening letter directly to Ventura. However, there is ample indirect evidence that defendant was involved in the threat. It is undisputed that defendant's father, who appeared in court on the day of Ventura's testimony, had handed the threatening letter to Ventura. That action, coupled with the earlier threat by defendant to Ventura that defendant was "going to say that [Ventura] had killed her" if he said anything, created a sufficient causal nexus between defendant and the threat. The jury was free to accept or reject that inference.

We reject defendant's contention that the proofs regarding the delivery of the threatening letter should have been excluded because it was unduly prejudicial. If the jury believed the circumstantial link between defendant and the letter was valid, the evidence of this threat was highly probative. See N.J.R.E. 402. Its probative value was not substantially outweighed by countervailing factors under N.J.R.E. 403. The trial judge did not misapply his discretion in overruling defendant's objection on grounds of prejudice. State v. DiFrisco, 137 N.J. 434, 496-97 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Additionally, we reject defendant's contention that the trial judge committed reversible error in not striking Ventura's testimony that the person who gave him the letter told him that it had been written by "Chano," i.e. defendant. This argument, which is based on hearsay grounds, fails for several reasons. First, the statement of defendant's father to Ventura, who was delivering the letter on his son's behalf, falls within the hearsay exception for statements by a party-opponent's agent. N.J.R.E., 803(b)(4). Moreover, the statement attributing the letter's authorship is part of the res gestae of the delivery of the threat. See, e.g., State v. Branch, 182 N.J. 338, 358-60 (2005) (explaining the common-law res gestae principles for admitting a spontaneous declaration connected with the declarant's action).

Even if the father's statement to Ventura was inadmissible hearsay, we discern no harmful error from it being heard by the jury. In fact, defendant's trial counsel attempted to use the threat evidence to his advantage in summations, by arguing that Ventura was not testifying truthfully in accusing defendant of the stabbings. In particular, defense counsel argued that by not telling the truth, Ventura was defying the explicit terms of the letter that the State had portrayed as a threat. In essence, the defense argued that the letter was not a threat at all.

Given the arguably two-edged nature of the threat evidence, and the other considerable proofs of guilt (including defendant's multiple confessions), any error in allowing the letter-related evidence was harmless. State v. Macon, 57 N.J. 325, 337-38 (1971).

IV.

Defendant next argues that the trial court should have declared a mistrial after receiving the jury's note on May 5 indicating that they "appear[ed] to be deadlocked 10-2" and that "the tension level is becoming quite high." We are satisfied that the trial judge did not misapply his discretion in declining to grant a mistrial and instead issuing the Model Jury Charge authorized for such potential deadlock situations after State v. Czachor, 82 N.J. 392 (1980).

In his supplemental instruction, the trial judge appropriately stressed to the jurors that they should not surrender their honest convictions about the case because of the views of fellow jurors. The qualified text of the jury's note, indicating they "appear[ed] to be deadlocked," after less than ten hours of deliberations following a two-week trial, reasonably suggested that further deliberations would not necessarily be a waste of time. State v. Williams, 39 N.J. 471 (1963), cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963) (noting the discretionary nature of such mistrial determinations). Defendant's reliance upon State v. Figueroa, 190 N.J. 219 (2007), is inapposite because in Figueroa (1) the trial judge had unfairly omitted that aspect of the Model Charge that they should not surrender their honest convictions, and (2) the judge had improperly intimated that deliberations might continue into the weekend, even though it was only Wednesday. Id. at 240, 242. Figueroa is simply not on point here.

We affirm the denial of the mistrial motion.

V.

As his final contention, defendant contends that his twenty-year sentence was manifestly excessive. We disagree. The sentence imposed was at the midpoint of the ten-to-thirty-year statutory range for aggravated manslaughter. N.J.S.A. 2C:11-4(c). We are satisfied that the trial judge correctly identified the aggravating and mitigating sentencing factors, and reasonably weighed those factors. Although we are mindful that defendant had no prior criminal record, a circumstance that the trial judge appropriately treated as a mitigation factor, see N.J.S.A. 2C:44-1(b)(7), we are equally mindful of the coroner's testimony that the victim was stabbed approximately forty-two times. The sentence does not, by any means, "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

VI.

 
For all of the foregoing reasons, defendant's conviction and sentence are affirmed on all respects.

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

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A-0232-06T4

 

June 19, 2009