STATE OF NEW JERSEY v. MARGARITO MAULEON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4169-07T44169-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARGARITO MAULEON,

Defendant-Appellant.

_____________________________________________________________

 

Submitted May 19, 2009 - Decided

Before Judges Collester and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment No.

06-10-3873.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated

Counsel, of counsel and on the brief).

Marlene Lynch Ford, Ocean County Prosecutor,

attorney for respondent (Samuel Marzarella,

Supervising Assistant Prosecutor, of counsel;

Roberta DiBiase, Assistant Prosecutor, on the

brief).

PER CURIAM

In a six-count indictment, defendant Margarito Mauleon 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 possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count four); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count five); and third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count six). A jury convicted defendant on all counts.

When defendant was sentenced on February 1, 2008, he was fifty-one years old and, as his attorney noted, defendant's only prior conviction was "a municipal ordinance violation for loud music." Defense counsel argued that the aggravating and mitigating factors were "somewhat balanced" and that defendant should be sentenced "somewhere in the middle, if not the lower range of 10 to 20 years" for his first-degree attempted murder conviction. The State, on the other hand, asked the court "to impose the maximum penalty available." The court merged counts two, three, and four into count one and sentenced defendant to a twenty-year term of imprisonment for attempted murder with seventeen years of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Concurrent five-year terms were imposed on counts five and six.

On appeal, defendant presents the following arguments:

POINT I

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED BY FAILING TO SUA SPONTE CHARGE THE JURY REGARDING VOLUNTARY INTOXICATION. (NOT RAISED BELOW).

POINT III

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

After reviewing the record and the applicable law, we reject defendant's contentions in Points I and II but remand for resentencing.

The State's proofs were relatively straightforward. On the evening of October 20, 2006, Juan Lopez Arias (Arias), Juan Bravo (Bravo), and Paula Bautista (Bautista) were sitting at a table in the kitchen of Bautista's house on Hermosa Drive in Lakewood, New Jersey. Arias lived in Bautista's house at the time; Bravo and Bautista were friends, and Bravo sometimes gave Bautista rides because she did not have a car. Bautista's children and several other people were also present in the house.

Shortly after 8:30 p.m., defendant knocked on Bautista's patio door and was let into the house by Arias. Thereafter, defendant sat down at the table with Bravo and Arias. Notably, defendant and Bautista had a prior romantic relationship that she "ended" approximately two months prior to October 20, 2006. Defendant asked Bautista for "permission to drink in the house that night." Bautista told him "No," and she "told him to leave." However, defendant did not leave and Bautista testified as follows:

Q. Did you allow him to stay in the house that night?

A. No, no.

Q. What happened?

A. I told him to leave. I approached the dining room. I heard him say to Juan Bravo why was he giving me rides. And --

Q. And when he said that to Juan Bravo, what did his face look like?

A. Angry.

Q. What happened next?

A. And then he told me I was going to end up with a cross on my forehead.

Q. Now, what did you understand that to mean?

A. Well, that he was going to kill me.

. . . .

Q. What happened after he said that?

A. Then he took out the pistol and he shot Juan Bravo. And when I saw him take out the pistol, I went to grab his hands.

Q. Did you . . . touch him or the pistol?

A. I don't remember, but I did touch him on the hand.

Q. When he shot Juan Bravo, how far away from Juan Bravo was he?

A. 3 or 4 feet away.

Q. When he shot Juan Bravo, was he standing or sitting? Mauleon, was Mauleon standing or sitting?

A. He was seated.

Q. He was seated.

And when he -- I'm sorry. When he shot Juan Bravo, was he looking at Juan Bravo?

A. Yes.

Q. Did he point the gun at him while he looked at him?

A. No. He was aiming at me.

Q. He was aiming at you?

A. Yes. And at the moment that he shot Juan Bravo, I went and grabbed his hands. And Juan Lopez Arias got up and helped me stop the pistol so he wouldn't shoot.

Q. Had the shot already been fired as of when you touched Mauleon or the gun?

A. Yes, it had been. The shot had been shot.

This testimony by Bautista was essentially corroborated by both Arias and Bravo.

Shortly after the shooting, Lakewood Police Officers arrived at the scene, and Bautista told them that defendant shot Bravo. Bravo had been taken to a hospital in a private car and was not present when the police arrived.

Patrick McIntyre of the Ocean County Sheriff's Department arrived at the scene at approximately 10:00 p.m. on October 20, 2006. McIntyre's Bloodhound, "Chance," was given a hat recovered from the patio near the sliding door as a "scent article" to track, and the dog followed a scent across Bautista's backyard until he "put his head down and went to the bottom of some shrubbery and stayed there." McIntyre shined his flashlight into the shrub and "saw a human face in there." According to another officer, defendant was found "hiding underneath some overgrowth and some bushes in the backyard." The Lakewood Police handcuffed defendant and took him into custody. When defendant was searched, the police found a "white clumpy" substance that tested positive for cocaine.

William Pozalante of the Ocean County Sheriff's Department processed the crime scene on October 20, 2006. Pozalante found and collected a handgun on the right side of Bautista's house near an abandoned truck cab. The gun was a Smith & Wesson .357 four-inch barrel revolver loaded with five hollow-point bullets and one spent casing under the hammer of the weapon. Daniel Barrett, a senior forensic scientist employed by the Ocean County Sheriff's Department, concluded that the bullet found in Bravo's body was fired from the handgun recovered from the crime scene.

Defendant elected not to testify, but defense counsel called two witnesses on his behalf: Detective Erin Krause of the Ocean County Sheriff's Department and Detective Oscar Valmon of the Lakewood Police Department. Detective Krause processed defendant for evidence and examined defendant's hands for gunshot residue. The test administered by Detective Krause indicated that no gunshot residue was on defendant's hands. Detective Krause testified, however, that gunshot residue could be purposely or inadvertently removed by the act of covering one's self with debris, wiping one's hands on clothing, or touching another person's hands.

Detective Valmon was sent to the crime scene to assist another detective and was also sent to the hospital to interview Bravo. Detective Valmon spoke "very briefly" to Bravo because Bravo was being flown by helicopter from Kimball Medical Center to Jersey Shore Hospital. Valmon asked Bravo, who was "somewhat disoriented," if he knew who shot him, and Bravo said "he did not know."

In defendant's first point, he argues that portions of the prosecutor's summation "exceeded the bounds of propriety by inferentially commenting upon the defendant's Fifth Amendment privilege." Because this issue was not raised before the trial court, we must apply the plain error rule:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

[R. 2:10-2.]

As the Supreme Court explained in State v. Macon, 57 N.J. 325, 336 (1971), "[t]he possibility [of an unjust result] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached."

It is clear that a prosecutor may not, either subtly or overtly, refer to the decision of a defendant not to testify. State v. Engel, 249 N.J. Super. 336, 382 (App. Div.), certif. denied, 130 N.J. 393 (1991). "When a prosecutor's comments indicate or imply a failure by the defense to present testimony, the facts and circumstances must be closely scrutinized to determine whether the defendant's Fifth Amendment privilege to remain silent has been violated and his right to a fair trial compromised." State v. Cooke, 345 N.J. Super. 480, 486 (App. Div. 2001), certif. denied, 171 N.J. 340 (2002).

We have examined the prosecutor's summation in the light of defendant's argument, and we are satisfied that it does not support the strained construction defendant now places upon it. Moreover, the trial court instructed the jury that it could not consider during its deliberations that defendant had chosen not to testify, and it is presumed that the jury followed this instruction. See Richardson v. March, 481 U.S. 200, 211, 107 S. Ct. 1702, 1709, 95 L. Ed. 2d 176, 188 (1987); State v. Burns, 192 N.J. 312, 335 (2007); State v. Farmer, 366 N.J. Super. 307, 319 (App. Div.), certif. denied, 180 N.J. 456 (2004). Thus, we conclude that the prosecutor's remarks were not improper and were not "clearly capable of producing an unjust result." R. 2:10-2.

With respect to defendant's second point, we note that a jury instruction on voluntary intoxication is only appropriate "if there exists a rational basis for the conclusion that defendant's 'faculties' were so 'prostrated' that he or she was incapable of forming an intent to commit the crime." State v. Mauricio, 117 N.J. 402, 418-19 (1990). The factors relevant to this issue include "the quantity of intoxicant consumed, the period of time involved, the actor's conduct as perceived by others . . . , any odor of alcohol or other intoxicating substance, the results of any tests to determine blood-alcohol content, and the actor's ability to recall specific events." State v. Cameron, 104 N.J. 42, 56 (1986). Testimony by witnesses that the defendant was drunk or intoxicated are "no more than conclusory labels, of little assistance in determining whether any drinking produced a prostration of faculties." Ibid.

In the present matter, there was no evidence of the amount of alcohol that defendant had consumed, the period of time that he had been drinking, or his blood-alcohol level when he shot Bravo. Moreover, defendant did not request a charge on intoxication, he did not object to its omission from the jury instructions, and his primary defense was that he was not the shooter. Under these circumstances, there was no factual or legal basis for a sua sponte jury charge on the defense of voluntary intoxication.

Defendant also challenges his sentence. We review sentencing decisions under the standard set forth in State v. Roth:

[A]ppellate review of a sentencing decision calls for us to determine, first, whether the correct sentencing guidelines, . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[ 95 N.J. 334, 365-66 (1984).]

As previously noted, defendant was fifty-one years old when he was sentenced. According to the adult presentence report, defendant was born in Mexico and came to the United States when he was twenty-two years old and, for almost three decades, his only contact with the criminal justice system involved a municipal ordinance violation for playing loud music. Consequently, the court found that defendant had no history of prior delinquency or criminal activity and that defendant had "led a law-abiding life for a substantial period of time before the commission of the present offense." N.J.S.A. 2C:44-1(b)(7). In addition, the court found there was the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), because he had "a serious substance abuse history"; and there was "the need to deter this defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9). Under these circumstances, the lack of a prior criminal record was a strong mitigating factor, and we conclude that the maximum twenty-year term of incarceration on count one is not supported by either the record or the judge's findings. See State v. Natale, 184 N.J. 458, 488 (2005) ("[W]hen the aggravating factors preponderate, sentences will tend toward the higher end of the range. In the past, defendants with long criminal records have been sentenced toward the upper part of the sentencing range. They should not anticipate a departure from that practice with the presumptive terms gone.").

We affirm defendant's convictions but remand for resentencing on count one. Jurisdiction is not retained.

 

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A-4169-07T4

August 13, 2009