STATE OF NEW JERSEY v. CARLOS RAMON GUTIERREZ

 
(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NOT FOR PUBLICATION WITHOUT THE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-0110-08T40110-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS RAMON GUTIERREZ aka CARLOS

WEZ aka WEZ GUTIERREZ aka CURTIS GARY,

Defendant-Appellant.

________________________________________________________________

 

Argued on February 24, 2010 - Decided

Before Judges Axelrad and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-486.

Michael Chazen argued the cause for appellant.

Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, of counsel and on the brief).

PER CURIAM

Defendant Carlos Ramon Gutierrez was indicted on charges of murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three). Defendant appeals from his convictions on all charges and sentence. We affirm.

The charges arose from the stabbing death of Jose Riascos on February 22, 2006 outside a bar where defendant was employed as a bouncer.

The victim, Jose Riascos, and a friend, Juan Saavedra, went to the QVOS bar in Linden after spending the evening at another bar watching a soccer match and drinking two bottles of Scotch. Two bouncers were working at QVOS that night, defendant and another man called Cash.

Riascos and Saavedra bought a third bottle of Scotch at QVOS and stayed until the bar closed. Saavedra stated that they were intoxicated but wanted to continue partying. Saavedra left QVOS first, and walked across the street to the Ford Explorer he was driving that night. After Riascos joined him, Saavedra made a u-turn and pulled up in front of QVOS. Riascos, seated in the passenger seat, turned the radio up, very loud.

At closing, there was an unrelated argument outside the bar between two girls who had been arguing inside QVOS earlier that evening. The girls' argument was the only problem that occurred inside QVOS that night. Juan Camilo Victoria (Camilo), the owner of QVOS, told Cash to go outside, see if everything was okay and tell them to go away. None of the witnesses testified that he made a similar request to defendant in response to the loud radio.

Fabian Huerfano left QVOS after closing with Mauricio Lara. He observed Saavedra and Riascos in the Explorer parked in front of QVOS, drinking, with the radio very loud. Huerfano and Lara approached the passenger's side and asked Riascos to lower the music and go away because the police would come. Riascos argued with Huerfano and took a swing at him. Huerfano kicked the passenger door and the two occupants of the Explorer got out. Saavedra tried to find an anti-theft club to use in self-defense but was unable to do so.

Huerfano testified that Riascos started "to go with [him]," and that Lara was holding him. Paul Seleita and Danny Zambrano were on his left. Danny Zambrano ran up to Riascos on the sidewalk and challenged him to fight one on one. They threw punches at each other but did not hit each other. Riascos stepped back, toward the street. Zambrano's cousin, Richard Peralta (Colin), asked him if he was serious, if he was "really gonna waste our time with some old dude." Zambrano did nothing after that and went back upstairs toward the driveway.

As Zambrano was walking away from Riascos, defendant came out of the bar and asked him, "What's going on? What's the beef?" Defendant then walked down the driveway to the street. Defendant started arguing with Riascos. Defendant and Riascos moved toward the middle and then to the farther side of the street, where they continued to yell and argue. Defendant was observed hitting the victim. None of the witnesses observed any weapons.

Saavedra testified that when he next saw Riascos, he was on the other side of the street from the Explorer, attempting to cross the street toward QVOS. His shirt was ripped off and he was starting to fall down. Saavedra asked him what happened but Riascos was unable to talk. Saavedra tried to pick him up until he saw that Riascos was bleeding. He called 9-1-1 and waited for the police to arrive.

Colin drove Huerfano, Zambrano, "George" and defendant away from the scene in Zambrano's car. Huerfano started talking about what he believed had happened, that a car had run over Riascos. He observed blood on defendant's right hand. Defendant looked at Huerfano and stated, "I don't know why I did this, I don't know why I stabbed the guy." Colin drove them to George's house, where Huerfano, George and defendant got out and entered the house. Defendant continued to repeat, "I don't know why I did this, I don't know why I stabbed the guy." Huerfano and defendant later went to Lara's house. Lara asked him about a mark on his face. Defendant explained that Riascos had thrown his jacket on defendant's face and that he had then stabbed him. Defendant continued to repeat to Huerfano and Lara that he "stabbed the guy," and asked Lara to take him home.

Defendant later called Camilo, the owner of QVOS. He asked about the police and asked Camilo to say he wasn't working that night. Defendant apologized, stating "I'm sorry, I lost it."

A knife was found approximately one block away from QVOS later in the day. Forensic testing showed that blood on the knife was Riascos' and that there was a mixture of DNA on the handle of the knife. The DNA analysis was inconclusive. Although the tests excluded Lara, Huerfano, Saavedra, and Zambrano as contributors to the DNA mix, defendant could not "be excluded as a potential contributor to the mixture."

Dr. Zhongxue Hua, Chief Medical Examiner for Union County, testified that Riascos suffered six sharp force injuries plus an additional seven or eight abrasions on the body. Dr. Hua testified that the knife wounds on victim and cuts on his clothing were consistent with the knife found near the scene of the stabbing, a single edge knife with a blade about three inches long and a maximum width of seven-eights of an inch.

Four of the wounds were on the front of the body: (1) a v-shaped wound at the right side of the chest, slightly above and lateral to the right nipple; (2) a wound slightly below and to the right of the right nipple; (3) a wound in the midline area involving both the right and left chest; and (4) a wound on the right side between the chest and the abdominal area. On the victim's right side, the fourth rib was cut through, an injury that corresponded to the v-shaped wound at the right side of the chest. On the victim's back, there were two stab wounds: one at the right side and one on the left side.

Dr. Hua testified that the cause of death was multiple sharp force injuries. The autopsy report noted that the right side of the lung was pierced through and the right side of the heart was cut through. Dr. Hua testified that this injury resulted in 500 cubic centimeters of blood collecting in the pericardial sac which could in itself be lethal. In addition, he stated that a stab wound slightly below the chest bone had cut the mamillary artery, which would cause extensive bleeding.

The following exchanges between the court and counsel are relevant to this appeal.

Before the jury selection, defense counsel raised an issue regarding the attendance of defendant's family members during jury selection:

[DEFENSE]: The only other issue, Judge, I would bring up it is anticipated that this trial at least for jury selection will have a large pool of jurors and I've instructed my client's family that because of the number of accommodations in the courtroom, there would probably not be room for them to be here for jury selection . . . .

I would just ask that the Court put that on the record that they are free to be here throughout the course of the trial but during the course of jury selection due to the room there may not be sufficient room.

THE COURT: Mr. Campagna, you've stated what is absolutely true. This is one of the smaller criminal courtrooms. My experience is that it will fit just over 80 people, maybe 85. We have in that area coming and while this is an open courtroom and anybody is permitted to be inside, of course, it is subject to making - - accommodating the jurors first. So we'll try, if they want to come to be here for the jury selection but they may not be able to fit. All right?

[DEFENSE]: Thank you, Judge.

THE COURT: Otherwise, they are entitled to be here as long as they are not witnesses.

There was no further request for an accommodation of family members and no objection on the record to the court's response.

After indicating that he would give a charge on passion/provocation manslaughter, the trial court questioned counsel about the lack of evidence to support any charge that required a finding of recklessness:

THE COURT: However, my concern is with issues of recklessness and you have consistently said to me I think that the lesser included offenses all the way down to fighting are in the case, including all the aggravated assaults. Is there recklessness in this case? Is there reckless manslaughter? Is there even aggravated manslaughter?

[DEFENSE COUNSEL]: I think so, Judge.

THE COURT: What is the reckless conduct? I can understand your argument regarding down to fighting; that people are engaging in mutual fighting. The evidence is that Mr. Gutierrez and Mr. Riascos may have been involved in a mutual fight and that there may be evidence that a third party was the one who inflicted these wounds and that, therefore, that kind of a charge could come in. But, in terms of the infliction of this type of injury, I don't understand how you can make an argument that the person who inflicted it was reckless.

It seems to me and the testimony is that this was six stab wounds. I don't see how that becomes reckless. I don't see what characterization of the evidence you can call it reckless.

In the continuing colloquy, the court questioned "how any rational juror could find that the person who inflicted these wounds, these six wounds, did so recklessly[.]" When the court asked defense counsel for evidence of reckless behavior, he replied:

Judge, the whole course of the night is an example in reckless behavior by all parties. I think that if the jury considers all of the facts, they may conclude based upon everything that happened that the defendant became caught up in the reckless behavior that was going on.

Defense counsel also alluded to the "mob scene" atmosphere as a factor influencing one to act recklessly. However, the trial court was clearly skeptical that six stab wounds could have been inflicted through merely reckless behavior. At this preliminary discussion of the charges, the court stated:

In order to get a lesser included even at the defense request, the [c]ourt has to find that you could acquit of the higher charge and that a rational basis could find on the evidence that the defendant committed the lesser included offense. Here the charges are murder. If the defendant was said to have acted in the heat of passion based on a reasonable provocation without a time to reflect and calm back down, I can see that the heat of passion charge could come in.

There is evidence in the case that the jacket was thrown at Mr. Gutierrez, that he was struck in the face, he had some type of a wound, that there was arguments back and forth and there may be that he believed that - - there may be testimony that his actions were necessary to defend against someone else.

Reckless behavior means you are doing something, you are violating the standard of care that you owe to people and if you do it once, I can see the argument but I don't see how a rational jury could believe that someone acted recklessly six times and stabbed him within this period of time. It does not make sense to me.

You are going to have to come up with a better argument than that before we get to this case because I am not hearing it at this point in time. I am we are in a very preliminary stage in terms of jury charge and I am not precluding you from further argument but I am not seeing recklessness.

At the close of the evidence, the trial court raised the issue of the appropriate charges to be given with counsel once again. Counsel was provided a sample verdict sheet that included murder, passion/provocation manslaughter, reckless and aggravated manslaughter, and all of the aggravated assault charges down to simple assault based upon mutual combat. The court explained that the verdict sheet was prepared based upon defense counsel's request and not based upon any conclusion that he had reached that those charges were appropriate. The court then reviewed the evidence as it pertained to the possible charges and stated, "If either party wants recklessness in the case, you are going to have to tell me what evidence I can point to to allow the jury to put those facts against the law."

No further evidence was identified by either the State or the defense to support a charge based on recklessness. When the court asked counsel for their thoughts on the final jury instruction, the prosecutor stated, "[T]he State does agree that we don't see reckless in this case and that those charges should not be given to the jury." The trial court then addressed defense counsel and asked, "[H]ave you had an opportunity? You want some more time to think about these issues?" Counsel replied:

Judge, I am comfortable with the issues. As I understand it, your Honor will be charging murder, passion/provocation manslaughter, which is second degree. You would not be charging reckless manslaughter, which I would concur with. You would not be charging aggravated manslaughter.

Defense counsel did not object to the court's decision not to charge aggravated manslaughter. In addition to the offenses charged in the indictment, the trial court instructed the jury on the lesser included offenses of passion/provocation manslaughter, attempted assault resulting in serious bodily injury or significant injury and assault arising from mutual combat. Following the charge, the court met with counsel at sidebar to determine if there were any additions or corrections to the charge as given. No objections were made.

The jury convicted defendant on all counts.

Defendant filed a motion for a new trial, raising the following issues: failure to charge aggravated manslaughter, the improper admission of the autopsy report, and, at the defendant's request, the exclusion of the defendant's family during jury selection. The trial court denied the motion, stating:

The court has ruled comprehensively on each one of the issues that was addressed in your brief except for the issue of whether the courtroom was open. I know that my court is - that no one is ever excluded from the court.

Now, it is possible that - this is a small courtroom and that because of the number of jurors that were needed to pick a jury in this case, that there may have been a time when there was not enough seats for every spectator to be here at the same time we were going to have the number of jurors that were necessary. On no other occasion would any of my officers exclude anybody from the courtroom and certainly nothing was brought to my attention during that process but I agree with you that the court is open and certainly if it had been brought to my attention when it happened, if it did happen, I certainly would have tried to make other accommodations. I don't know if those other accommodations would have been possible given the configuration of this courtroom.

At sentencing, the court merged counts two and three (weapon possession charges) into count one (murder). The court imposed a custodial sentence of sixty years with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, followed by a five-year term of parole supervision, and appropriate fines and penalties.

In this appeal, defendant raises the following issues:

POINT I

EXCLUSION OF THE DEFENDANT'S FAMILY MEMBERS FROM THE COURTROOM DURING JURY SELECTION VIOLATED THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHT TO A PUBLIC TRIAL, THUS REQUIRING REVERSAL OF THE CONVICTION AND REMAND FOR A NEW TRIAL. (RAISED BELOW).

POINT II

THE TRIAL COURT VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS IN FAILING TO CHARGE THE JURY AS TO AGGRAVATED MANSLAUGHTER, THUS REQUIRING REMAND FOR A NEW TRIAL. (RAISED BELOW).

POINT III

THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT ALLOWED INTO EVIDENCE THE AUTOPSY REPORT OF THE DECEDENT VICTIM, JOSE RIASCOS, DEPSITE THE FACT THAT THE MEDICAL EXAMINER WHO PREPARED SAME DID NOT TESTIFY (RAISED BELOW).

POINT IV

THE SENTENCE IMPOSED ON DEFENDANT IS IMPROPER, EXCESSIVE AND SHOCKS THE CONSCIENCE.

We find no merit in any of these arguments.

I

Defendant argues that he was deprived of his constitutional right to a public trial because members of his family were excluded from the courtroom during jury selection. In State v. Venable, we held that, without an objection by the defendant or other evidence that the public was actually excluded from a jury selection, any claimed denial of the right to a public trial is "hypothetical" and does not merit reversal. ___ N.J. Super. ___, ___ (App. Div. 2010) (slip op. at 12-13). Further, we found that the refusal to admit members of the family, without a showing that others were excluded, did not violate the defendant's Sixth Amendment rights. Ibid.

Here, it was conceded that the trial court neither took any action to exclude family members nor failed to respond to any request for accommodation of family members. To the contrary, the record shows that the trial court responded with consummate courtesy when counsel first raised the issue and again when it was raised during the motion for a new trial. At the time of the motion, the court said, "[I]f it had been brought to my attention when it happened, if it did happen, I certainly would have tried to make other accommodations." This was entirely consistent with his earlier statement on the subject. We therefore conclude that, even if family members were unable to be present during jury selection, defendant did not suffer any cognizable violation of his constitutional rights.

II

We turn to defendant's contention that the court committed reversible error in failing to charge aggravated manslaughter to the jury.

The court discussed at length its opinion that the evidence did not warrant any charges based on a finding of recklessness, including the charge on aggravated manslaughter, and repeatedly invited counsel to identify evidence that would support such charges. Defense counsel attempted to justify the charge by referring to the evidence as showing that all involved in the events that evening were acting recklessly. When the court was unpersuaded, defense counsel did not object, either at the charge conference or after the charge was given.

Rule 1:7-2 explicitly provides that

no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . .

Although this issue was raised in a motion for a new trial, that argument obviously was not made "before the jury retire[d] to consider its verdict." Accordingly, we review the issue pursuant to the plain error standard to determine whether the failure to charge aggravated manslaughter was error clearly capable of producing an unjust result. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997). Plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

Our review of the evidence leads to the conclusion that it was not error, let alone plain error, for the trial court to deny an aggravated manslaughter charge here.

N.J.S.A. 2C:1-8(e) requires that there be "a rational basis for a verdict convicting the defendant of the included offense" before a court charges a lesser included offense. In addition to satisfying the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), there must be a rational basis in the evidence to support a charge on that included offense. State v. Thomas, 187 N.J. 119, 131 (2006). As the trial court correctly observed, the meaning of a "rational basis" here is that the evidence must present "a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Brent, 137 N.J. 107, 117 (1994)). See also State v. Jenkins, 178 N.J. 347, 361 (2004) (applying plain error standard, trial court has "an independent obligation to instruct on lesser-included charges [only] when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense.")

For the murder conviction here, the State was required to prove that defendant "[(1)]knowingly or purposely inflicted serious bodily injury with actual knowledge that [(2)]the injury created a substantial risk of death and [(3)]that it was 'highly probable' that death would result." State v. Wilder, 193 N.J. 398, 409 (2008) (citing Jenkins, supra, 178 N.J. at 363). A defendant commits aggravated manslaughter if he or she causes death with "an awareness and conscious disregard of the probability of death." Ibid.

Plainly, both offenses include knowledge or an awareness of a risk of death as essential elements. It is, therefore, important that the aggravated manslaughter element, a conscious disregard of a substantial risk of death, not be read so broadly as to encompass conduct that qualifies as purposeful murder. Essentially the distinction is between inflicting the harm with "design or contemplation" and inflicting the harm when it is merely within the risk of which the actor is aware. The Supreme Court noted that in determining whether the defendant acted with an extreme indifference to human life, "the focus is not on the defendant's state of mind, but on the circumstances under which the defendant acted." Wilder, supra, 193 N.J. at 409 (quoting Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:11-4 (2007)); see also State v. Cruz, 163 N.J. 403, 417-18 (2000).

Defendant's use of a deadly weapon here permitted an inference that defendant intended to kill or cause serious bodily injury that resulted in death. State v. Martini, 131 N.J. 176, 269-274 (1993). However, the use of a deadly weapon is but one circumstance to be considered. The number and location of intentionally inflicted wounds as well as the defendant's demeanor and surrounding circumstances are all significant factors. See, e.g., Cruz, supra, 163 N.J. at 418 (if death was caused by a deliberately inflicted gunshot wound to a victim's knee, that act did not create a substantial risk of death that was highly probable, and therefore, should ordinarily be charged as aggravated manslaughter); State v. Bishop, 225 N.J. Super. 596, 600-601, 604, 605 (App. Div. 1988) (rational basis to charge aggravated manslaughter found where defendant stabbed a victim unknown to him in the midst of a twenty-person "free for all" while defendant was "out of control" and "waving a knife around").

As the trial court noted here, the victim was stabbed six times. The victim was stabbed both in the front and in the back, the latter wounds supporting an inference that the victim was stabbed while he was in a defensive mode, or at least posing no threat to his assailant. See State v. Jones, 308 N.J. Super. 15, 39 (App. Div. 1998) (fact that victim was struck with a bat while supine was relevant to whether murder was purposeful and knowing). Unlike the hypothetical gunshot to the
knee in Cruz, the victim here was stabbed in areas that exposed vital organs to injury. Moreover, it is evident that the wounds were inflicted forcefully since the victim's rib and heart were both cut through and his lung was pierced.

The circumstances of the attack also merit attention. The evidence permitted inferences that there was mutual combat between defendant and the victim and that there may have been an additional attacker. For this reason, the trial court appropriately gave the jury instructions on aggravated assault and simple assault based upon mutual combat. The trial court also viewed the evidence that the victim had thrown his jacket at defendant as sufficient to warrant a charge on passion/provocation manslaughter. However, the evidence also showed that the altercation involving Riascos and other QVOS patrons was largely verbal, had not caused injury to anyone and had ended before defendant left QVOS. Riascos was intoxicated and unarmed. There was no evidence that defendant approached Riascos pursuant to a request from his employer or otherwise pursuant to his duties as a bouncer. The evidence failed to show any need for defendant to become embroiled in a confrontation with Riascos or to use a knife to defend himself or anyone else.

In summary, the evidence here showed that defendant used a deadly weapon, repeatedly and forcefully, against an unarmed and intoxicated man who posed no threat to him. He inflicted wounds to areas of the victim's body that presented a substantial risk of serious injury to critical organs as well as to the victim's back, reflecting the defenseless posture of the victim. Against this record, we conclude that the evidence that defendant acted purposefully in inflicting these wounds was compelling and that there was no rational basis for a jury to find that defendant had merely acted recklessly in inflicting the fatal injuries. As a result, the trial court did not err in declining to give a charge on aggravated manslaughter.

III

After carefully considering the record and briefs, we are satisfied that defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.

Although the trial court ruled that the autopsy report could be received in evidence, the contents of the report were neither provided to the jury nor discussed in summations before the prosecutor withdrew it from evidence. Since the report itself was never before the jury, the claim that there was a violation of defendant's Sixth Amendment confrontation clause rights is entirely without merit.

As for defendant's challenge to his sentence, appellate review entails the following determinations:

(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.

[State v. Megargel, 143 N.J. 484, 493 (1996).]

The standard of review is one of deference. "[A]s long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record[,]" the sentence should be affirmed State v. O'Donnell, 117 N.J. 210, 215 (1989).

Defendant does not contend that any of the aggravating factors found by the trial court were not supported by the record or that the court failed to find an appropriate mitigating factor. The trial court correctly applied the correct legal principles and did not abuse its discretion in imposing sentence.

Affirmed.

 

The abrasions were located on the right side of the cheek area; the right side of the upper lip; the left side of the abdominal area; in the back of the right middle finger; two additional abrasions on the back of the left middle finger; one on the back and side of the right forearm and one at the side of the right wrist area.

Notwithstanding defendant's assertion that the issues argued in Points I and II were raised below, there was no objection at trial to the exclusion of family members or to the charge.

In a footnote in his reply brief, defendant attempts to raise the issue of ineffective assistance of counsel based on counsel's failure to object. Issues may not be presented for appellate review by inclusion in a reply brief, State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S. Ct. 232, 27 L. Ed. 2d 256 (1970); Warren Twp. v. Suffness, 225 N.J. Super. 399, 412 (App. Div. 1988), certif. denied, 113 N.J. 640 (1988), or by inclusion in a footnote. See Almog v. ITAS, 298 N.J. Super. 145, 155 (App. Div. 1997), appeal dismissed, 152 N.J. 361 (1998); R. 2:6-2(5). Moreover, claims of ineffective assistance of counsel are more appropriately raised in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).

N.J.S.A. 2C:2-3(b) defines the applicable standard for "purposely or knowingly":

When the offense requires that the defendant purposely or knowingly cause a particular result, the actual result must be within the design or contemplation, . . . of the actor . . . .

N.J.S.A. 2C:2-3(c) defines the applicable standard for reckless conduct:

When the offense requires that the defendant recklessly or criminally negligently cause a particular result, the actual result must be within the risk of which the actor is aware . . . .

(continued)

(continued)

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A-0110-08T4

March 23, 2010