STATE OF NEW JERSEY v. JAVIER GARCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2489-05T42489-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAVIER GARCIA,

Defendant-Appellant.

_______________________________________________________________

 

Submitted March 17, 2009 - Decided

Before Judges Graves and Espinosa.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

04-11-3604.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Joshua D. Sanders, Assistant

Deputy Public Defender, of counsel and on the

brief).

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Sara A. Friedman,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

In a five-count indictment, defendant Javier Garcia was charged with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (count five). Defendant's jury trial began on September 27, 2005, and concluded on October 6, 2005. The jury acquitted defendant of attempted murder, but he was convicted on the remaining counts. At sentencing, the court merged count four into count two, and defendant was sentenced to a nine-year prison term on count two, subject to a mandatory period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. On count three, defendant was sentenced to a concurrent five-year term, and on count five he received a concurrent eighteen-month term.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT'S DENIAL OF GARCIA'S MOTIONS TO DISMISS THE INDICTMENTS DENIED GARCIA'S FEDERAL AND STATE RIGHTS TO DUE PROCESS.

POINT II

THE TRIAL COURT FAILED TO ADEQUATELY ANSWER THE JURY'S QUESTION WHEN IT REFUSED TO RECHARGE SELF-DEFENSE OR OTHERWISE PROVIDE AN ANSWER THAT WAS CONNECTED TO THE FACTS OF THIS CASE OR THE DEFENSE PROFFERED.

POINT III

FAILURE TO INSTRUCT THE JURY AS REQUIRED BY STATE V. HAMPTON AND N.J.R.E. 104(c) MANDATES REVERSAL. (NOT RAISED BELOW)

POINT IV

THE TRIAL COURT'S FAILURE TO SANITIZE GARCIA'S CONVICTIONS VIOLATED GARCIA'S FEDERAL AND STATE RIGHTS AND REQUIRES REVERSAL.

POINT V

THE TRIAL COURT'S IMPOSITION OF NINE (9) YEARS IMPRISONMENT SUBJECT TO THE NO EARLY RELEASE ACT WAS IMPROPERLY DETERMINED, EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.

We conclude from our review of the record and the applicable law that these arguments are without merit and require only the following discussion in a written opinion. R. 2:11-3(e)(2).

During defendant's trial, Raphael Lugo (Lugo) testified that on Saturday, July 26, 2003, the day he was shot, he was driving on Oraton Street in the City of Newark, at approximately 10:00 a.m., when defendant, who was driving behind him, flashed his lights and signaled for Lugo "to pull over." Lugo knew defendant because they lived in the same building. According to Lugo, the two men and their wives did not socialize, but Lugo denied having any prior problems with defendant. Lugo thought there might be something that defendant wanted to tell him, so Lugo pulled over.

After defendant exited his vehicle, Lugo asked what was wrong, and defendant stated Lugo had "disrespected" him by sleeping with his wife. Lugo told defendant that he never slept with defendant's wife. Because defendant did not believe him and defendant was angry, Lugo decided it was best to leave. As Lugo started to return to his car, defendant drew a gun from his waist and fired at Lugo. When defendant realized he had missed, he tried to fire a second time, but the gun jammed.

Lugo testified that he was hit in the head with the gun as he tried to tackle defendant and was knocked to the ground. Lugo also testified as follows:

Q. What happened then?

A. Javier got on top and [was] trying to unjam the gun and then I was trying to block my face. [I was] [s]cared to get shot and then he shot me in the face.

Q. When you fell to the ground how did you fall?

A. I fell back.

Q. Laying on your back on the ground?

A. Yes.

Q. And how did Javier get on top of you?

A. With his knees toward me like trying to get down at me.

Q. Where did he have his knee?

A. Like on my stomach area.

Q. Were you able to get up with his knee on your stomach?

A. After I got shot, I didn't move. But, prior to that, no.

Q. When you were down and his knee was in your stomach area were you trying to defend yourself?

A. Trying to avoid getting shot in my face. Blocking my face like this. I was scared.

Q. Able to still see the gun?

A. Yes.

Q. Okay. And, when you were down and you were trying to cover your face did you see the weapon pointed at you?

A. Yes.

Q. Where was it pointed?

A. Toward my face.

Q. Okay. And, did you observe Mr. Garcia fire the weapon again?

A. Yes.

Q. How many times did he fire the weapon[?]

A. One more time.

Q. Where did that bullet hit you?

A. Right in my mouth.

After Lugo was shot, he managed to get up and was "screaming" as he ran away. Lugo testified that defendant started running after him, but then returned to his car and drove off. At that point, Lugo was able to return to his car, and he drove himself to the hospital.

In response to a reported shooting, the police arrived at the scene. After speaking with a witness, who did not testify at defendant's trial, the officers had the dispatcher broadcast a general bulletin for a red, two-door Acura with a certain New Jersey license plate. A short time later, while defendant was being issued a traffic summons for disregarding a red light, the police officers who had stopped defendant's vehicle received the radio transmission regarding the vehicle that was wanted in connection with the shooting, and the description matched the car that defendant was driving. When defendant was asked to step out of the car, the police observed a handgun behind the front passenger seat.

After defendant was transported to the police station, Detective Cynthia Baker read him his Miranda rights, and defendant gave two statements, which were transcribed by Baker and signed by defendant. In his first statement, defendant claimed that the shooting occurred after Lugo threatened him with a gun:

Question: Mr. Garcia, can you tell me . . . in your own words about the shooting . . .?

Answer: I was on Oraton doing my exercise at G-O-L-D-S-. Pulled up and asked. Think his name is Ra[ph]ael but he pulled up and asked if I had a problem.

He then [said] he heard that I was accusing him of being with my girl. Then he got tough and he said: Whenever you have a problem, come see me. Then he went to his car and he came out fast and said: Look what I got?

That's when he pulled a gun from his waist pants and I rushed him and tried to bring him to the floor. I then brought him down to the floor and I was struggling with the gun. I was struggling with the gun--went off. And, I was trying to take the gun from him. And asked why we were struggling.

The gun went off and I couldn't believe it. So I took the gun and I put it in my car. The only reason I took the gun was so that he couldn't pick it up and come back and kill me.

I then left in my car and went through a red light. And, that's when the police pulled me over and that's when . . . he saw the gun in the car.

After defendant's first statement had ended, he was escorted to the men's room by Detective Darren Gilbert. When he returned, defendant told Detective Baker he wanted to give a second statement. In his second statement, defendant admitted he threatened Lugo with a gun because he "wanted to scare him":

Mr. Garcia, at 1640 hours I'm reopening this statement. Will you answer my questions at this time?

Answer: Yes.

Question: Mr. Garcia, did you state to me Detective Baker that Ra[ph]ael pulled a gun out on you?

Answer: Yes.

Question: Mr. Garcia, was that statement true?

Answer: No.

Question: Mr. Garcia, the gun used during the shooting to whom [does] it belong?

Answer: To me. I also follow him and I pulled him over and over. We started to talk. And, then he started to get tough. And, I told him to stay [away] from my girl.

Then when he started getting close to me, then I pulled out the gun and told him again to stay away from my girl or I would shoot him.

I was putting the gun away and he rushed me and then we started to fight. Then the gun went off as we was wrestling. Just wanted to scare him and tell him to leave my girl alone.

In his initial statement to the police, defendant was asked if he was "alone when the shooting happened," and he answered "yes." In addition, Detective Baker testified that when she asked defendant where he got the gun, he told her he bought the gun for $200 from an Hispanic "guy who was selling it on the street."

At trial, defendant testified that he was not telling the truth when he told Detective Baker it was his gun. Defendant testified he only said it was his gun because Detective Gilbert spoke to him in a "threatening manner":

Q. Now, you also stated that Detective Gilbert said to you that you were the one with the gun.

Isn't that correct?

A. Yes.

Q. Now, after he said that to you, did he ever say to you, you better go out there and tell the truth? Did he threaten you to go out there and tell the truth?

A. Yes, he did.

Q. How did he threaten you, sir?

A. He said, you better tell me the truth. You know you was the one with the gun. You know you was the one who possessed the gun. Everybody knows. The cop knows. I know.

Q. So you looked upon that as being a threat?

A. Yes. It was a threat.

Q. But you knew you were not the one with the gun.

Is that correct?

A. Yes.

Q. And even though he said that to you, as you say now in a threatening manner, he made you believe you were the person with the gun just based upon his words?

A. Yes.

When Detective Gilbert testified, however, he denied that he threatened or coerced defendant "to tell the truth and be forthright." But he agreed that he probably said: "You need to come clean and, you know, admit what you did."

Adam Torres, a defense witness, corroborated portions of defendant's first statement. Torres testified that prior to the shooting, he was throwing a football back and forth with defendant when Lugo's vehicle approached. According to Torres, after a brief conversation, Lugo pulled a gun on defendant and as the two men were struggling over the gun it discharged. Torres testified that Lugo was "bleeding from his mouth" when he got back into his car and drove away. On cross-examination, Torres testified he never told the police what he had seen because he "didn't want to be involved." Despite his claim that he did not want to be involved, Torres acknowledged speaking with defendant at his lawyer's office a "couple of times."

In his first point, defendant contends the trial court erred in denying his motion to dismiss Essex County Indictment No. 04-11-3604. Although procedural irregularities in grand jury proceedings are normally rendered moot if a defendant is tried and found guilty by a petit jury, State v. Laws, 262 N.J. Super. 551, 563 (App. Div.), certif. denied, 134 N.J. 475 (1993), this issue was "preserved for appeal" in an order entered by this court on May 19, 2005. Consequently, we have reviewed the matter in light of the record, and we affirm the order denying defendant's motion to dismiss the indictment substantially for the reasons stated by the trial court in its written decision on May 3, 2005.

Based on a transcript of the grand jury proceedings on November 12, 2004, the court found that the grand jury had been instructed on the law with regard to each of the charges it considered, and it correctly concluded that the State's failure to make a stenographic record or sound recording of those instructions did not violate defendant's federal or state due process rights. See State v. Smith, 102 N.J. Super. 325, 338 (Law Div. 1968) ("[T]he failure to provide a stenographic record of the grand jury proceedings did not violate any of the constitutional rights of defendants."), aff'd on other grounds, 55 N.J. 476, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970).

With regard to defendant's second point, we note that defendant does not assert that the trial court's initial charge on self-defense was improper. Instead, defendant contends the trial court committed reversible error by not recharging the jury on self-defense in response to a question from the jury during its deliberations. Following the recharge, the court explained to counsel that it did not provide the entire self-defense charge because the jury "didn't ask for self-defense," and the court did not want to highlight "something that they didn't ask for." When the original jury charge and the supplemental instructions are examined in their entirety, we are satisfied that the jury received a correct and comprehensive explanation of the controlling law, and any possible error was harmless beyond a reasonable doubt. See State v. Gallicchio, 44 N.J. 540, 549 (1965) ("Had the trial court been in error as to its interpretation of the plain words of the jury's request, the jury would certainly have made a further request.").

In his third point, defendant contends the court committed plain error when it failed to instruct the jury in accordance with State v. Hampton, 61 N.J. 250 (1972), and N.J.R.E. 104(c), which codified the Court's holding in Hampton. As the Court has stated, "whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence the Hampton instruction, directing the jury to determine the credibility of the statements without any knowledge that the court has already determined the issue of voluntariness, should be given." State v. Jordan, 147 N.J. 409, 425 (1997). Nevertheless, a court's failure to give a Hampton charge "is not reversible error per se. It is reversible error only when, in the context of the entire case, the omission is 'clearly capable of producing an unjust result.'" Ibid. Any possibility of an unjust result will not suffice; the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). Further, "any finding of plain error depends on an evaluation of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).

In the present matter, based on the contradictory testimony presented during the trial, the closing arguments by counsel, and the trial court's instructions to the jury, which included a "false in one, false in all" charge, we are satisfied that the jury was undoubtedly aware of its responsibility to determine whether defendant actually made the statements that Detective Baker attributed to him. In addition, the jury undoubtedly understood that as the judge of the facts, it had a responsibility to carefully weigh all of the evidence, including the statements defendant allegedly made to Detective Baker and his trial testimony, to determine whether the evidence, or any portion of it, was credible. Moreover, in light of the conflicting testimony, the outcome of defendant's trial depended primarily on the jurors' evaluation of the credibility of the witnesses, and reasonable jurors could easily have concluded that Lugo's version of the facts was more plausible and trustworthy than those offered by defendant and Torres. Under these circumstances, we conclude that the omission of a Hampton charge did not constitute plain error because it was not clearly capable of producing an unjust result.

In his next point, defendant contends that he did not receive a fair trial because the trial court failed to sanitize his prior convictions. Defendant testified that in 1994 and 1996 he was convicted of possession of a controlled dangerous substance with intent to distribute in a school zone, and he argues that the only purpose for introducing "the full title of his prior crimes" was "to inflame the passions of the jury." However, defendant was not entitled to have his two prior convictions sanitized because they were not the same or similar to the charges that were being tried. See State v. Brunson, 132 N.J. 377, 391 (1993) (holding that sanitization is required "in those cases in which a testifying defendant previously has been convicted of a crime that is the same or similar to the offense charged"). Additionally, the jury was instructed that the evidence of defendant's prior convictions was admissible "only for the purpose of affecting the credibility of the defendant and for no other purpose," and defendant was acquitted of attempted murder. Under these circumstances, there has been no showing that the prior-conviction evidence was capable of "unduly prejudicing the jury's fair hearing of the defendant's version of what transpired." State v. Hamilton, 193 N.J. 255, 268 (2008).

Defendant also challenges his sentence. But we conclude that the court correctly applied the sentencing guidelines, the sentence imposed is not manifestly excessive or unduly punitive, and it certainly does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

Affirmed.

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

(continued)

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A-2489-05T4

September 22, 2009