STATE OF NEW JERSEY v. MARIA I. DURAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1920-06T41920-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIA I. DURAN, a/k/a MARIA

IGINIA DURAN VENTURA,

Defendant-Appellant.

_______________________________

 

Argued October 20, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-01299.

Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, LLC, attorneys; Mr. Loughry, on the brief).

Reza Mazaheri, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Mazaheri, on the brief).

PER CURIAM

On December 1, 2005, a Union County Grand Jury charged defendant Maria I. Duran, along with co-defendants Yamilet Duran, her daughter; and Zoila Morales, with second-degree aggravated assault by causing serious bodily injury to another, N.J.S.A. 2C:12-1b(1) (count one); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d (count three).

Prior to trial, Yamilet Duran and Morales filed motions seeking to sever their trial from defendant's trial. Although defendant had not filed a similar motion, her counsel advised the trial court that defendant intended to introduce evidence of the victim Carolina Rodriguez's belief that Yamilet Duran and Morales were members of the MS-13 street gang to explain why Rodriguez would have falsely accused defendant, rather than defendant's daughter Yamilet, of assaulting her with a knife. Following an N.J.R.E. 104 hearing, the court barred defendant from presenting evidence that Rodriguez was afraid of Yamilet Duran and Morales because of their affiliation with the MS-13 street gang. With the court so ruling, defendant joined co-defendants' motion to sever. The court denied the motion.

A jury found defendant guilty of all charges. The same jury found Yamilet Duran and Morales guilty of third-degree aggravated assault by causing significant bodily injury to another, as a lesser-included offense of count one, and acquitted them of counts two and three.

On September 29, 2006, after finding that aggravating sentencing factors N.J.S.A. 2C:44-1a(2), (3), and (9) outweighed mitigating sentencing factor N.J.S.A. 2C:44-1b(7), the court sentenced defendant on count one to a five-year term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to three years of parole supervision upon release. The court merged the convictions on counts two and three with the conviction on count one. The court also imposed all appropriate fines and penalties.

On appeal, defendant argues:

POINT I.

THE COURT VIOLATED APPELLANT'S CONFRONTATION RIGHTS WHEN IT EXCLUDED FROM THE TRIAL ALL CROSS-EXAMINATION AND ALL EVIDENCE REGARDING VICTIM CAROLINA RODRIGUEZ'S BELIEF IN THE MS-13 GANG MEMBERSHIP OF YAMILET AND ZOILA MORALES AND HER FURTHER UNDERSTANDING THAT MS-13 PRACTICED EXTREME AND VIOLENT RETALIATION AGAINST PERSONS WHO WOULD TESTIFY AGAINST GANG MEMBERS.

A. THE COURT DEPRIVED [DEFENDANT] OF HER SIXTH AMENDMENT RIGHT TO CONFRONTATION WHEN IT PROHIBITED COUNSEL FROM CROSS-EXAMINING CAROLINA RODRIGUEZ AS TO HER POSSIBLE MOTIVE TO FABRICATE IN HER IDENTIFICATION OF MARIA DURAN AS THE SLASHER; THE MOTIVE TO FABRICATE WAS CAROLINA RODRIGUEZ'S FEAR OF THE MS-13 GANG.

B. THE CONFRONTATION CLAUSE VIOLATION WAS NOT HARMLESS ERROR.

C. THE COURT ERRED IN DENYING SEVERANCE.

POINT II.

THE COURT ERRED IN PERMITTING THE PROSECUTION TO PRESENT LAY OPINION TESTIMONY CONCERNING A SO-CALLED STAIN ON THE KNIFE, WHICH THE POLICE SEIZED AT THE TIME OF THE INCIDENT.

POINT III.

THE PROSECUTION IMPERMISSIBLY ARGUED FOR A CONCLUSION AS TO THE IMPLEMENT THAT CAUSED THE WOUND IN THIS CASE, AN ARGUMENT WHICH COULD NOT BE MADE WITHOUT EXPERT TESTIMONY, WHICH WAS COMPLETELY ABSENT FROM THE RECORD.

We agree with defendant as to argument in Point I and reverse. In this light, we do not reach the remaining arguments advanced by defendant in support of this appeal.

I.

On June 25, 2005, Rodriguez, Yamilet Duran, and Morales attended a party in the City of Plainfield, during which Rodriguez and Yamilet Duran had a physical altercation. On June 27, 2005, Yamilet Duran and Morales telephoned Rodriguez's boyfriend several times inquiring of Rodriguez's whereabouts so that they could fight her.

According to Rodriguez's testimony, later that day while she stood outside her apartment building in the City of Plainfield with her two young children, defendant and co-defendants approached her with defendant stating: "Now do to me what you did to my daughter on Saturday, bitch." Defendant next grabbed Rodriguez's hair, and one of the co-defendants said: "Now we [are] going to fight." Yamilet Duran and Morales then ran toward Rodriguez, and along with defendant, cornered her against a handrail. While Yamilet Duran punched her, defendant slashed her on the left side of her face with a kitchen knife. Although severely injured, Rodriguez was able to grab the knife out of defendant's hand.

Immediately following the assault, Rodriguez dialed 9-1-1, and Patrolman James Stillman of the Plainfield Police Department responded. Rodriguez told Stillman what had occurred and gave Stillman the knife. Following a short investigation, the Plainfield Rescue Squad transported Rodriguez to Muhlenberg Hospital where she received thirty-five sutures to close the wound. Ten months post-assault, Rodriguez underwent surgery to reduce her residual scar.

Defendant and Yamilet Duran testified contrary to Rodriguez's version of events. Yamilet Duran testified that it was she, not her mother, who had slashed Rodriguez's face, but with a razorblade, not a knife. Defendant testified that she neither participated in the assault nor witnessed it. She stated that she had driven to the area of the assault after it had occurred, having received a telephone call from her daughter requesting a ride for herself and Morales.

II.

In Point I, defendant argues that the trial court erred in denying the motion to sever her trial from co-defendants' trial. Defendant also contends that the court erred in prohibiting her from introducing evidence concerning Rodriguez's fear of Yamilet Duran and Morales because of her belief that they were members of the MS-13 street gang. Defendant asserts that the trial court's rulings denied her right to confront and cross-examine Rodriguez concerning her potential bias or motive to fabricate testimony by accusing defendant, rather than Yamilet Duran, as the individual who had assaulted her with the knife. We agree.

On the day prior to trial, Yamilet Duran and Morales moved to sever their trial from defendant's trial. At the hearing, defendant advised the court that it was her contention that Yamilet Duran was the individual who had slashed Rodriguez's face. Defendant's counsel acknowledged that in presenting that defense, the jury would have to confront the question of why Rodriguez would have accused defendant of cutting her with a knife, rather than her daughter.

Defendant's counsel informed the court that to resolve that question he intended to introduce evidence that Rodriguez feared Yamilet Duran and Morales because she believed they belonged to the MS-13 street gang, a gang Rodriguez knew retaliated against individuals who testified against its members. In furtherance of defendant's argument, counsel also advised the court of his intention to introduce evidence that Yamilet Duran's cousin, Rubidia Duran, had overheard Yamilet Duran admit on the night of the incident that she was the individual who had cut Rodriguez's face during the assault.

Initially, the trial court denied the motion for severance and ruled that defendant could present the testimony of Rubidia Duran concerning what she had overheard Yamilet Duran say about the assault. As to defendant's request to introduce evidence of Rodriguez's belief of the affiliation of Yamilet Duran and Morales with the MS-13 street gang, the court advised that it would withhold its decision on that evidentiary question pending hearing testimony on the issue.

On the next day, the court conducted an N.J.R.E. 104 hearing at which defendant presented testimony of Rubidia Duran and Rodriguez. Rubidia Duran testified that on the night of the assault, she had overheard Yamilet Duran arguing with defendant during which Yamilet Duran admitted that it was she, not defendant, who had cut Rodriguez's face during the assault, and that she had done so because Rodriguez had scratched her face during their fight several days earlier. Rubidia Duran also testified that Yamilet Duran had made similar statements on other occasions.

Rodriguez testified that on June 28, 2005, she had given a statement to Detective Fernando Sanchez of the Plainfield Police Department stating that "[w]e are just scared, because they are part of the MS-13 Gang." Rodriguez admitted knowing Yamilet Duran and Morales for several months prior to the assault, and during that time she had "developed the belief that they were part of the MS-13 gang." She also acknowledged knowing that the MS-13 street gang is a "very violent street gang" involved with drugs, and that the gang has a reputation of being "very violent" towards those who inform against their members. Nevertheless, she stated that defendant was the individual who had cut her face, and that she was no longer in fear of Yamilet Duran or Morales because "[a] year has passed already and I have gone passed, moved on from what happened."

After hearing the testimony, the court reaffirmed its denial of the motion for severance and its ruling that defendant could present Rubidia Duran's testimony. However, the court denied defendant's request to present testimony concerning Rodriguez's belief that Yamilet Duran and Morales were members of the MS-13 street gang. In so doing, the court determined that co-defendants' alleged gang affiliation was N.J.R.E. 404(b) evidence; the evidence was too attenuated from the incident; and any prejudice to the co-defendants would have "far outweigh[ed]" any benefit therefrom.

Whether to grant a motion for severance under Rule 3:15-2(b) is within the sound discretion of the trial court. State v. Brown, 170 N.J. 138, 160 (2001). Accordingly, we will not reverse a trial court's decision to grant or deny a motion for severance, absent a showing of abuse of discretion. State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1997). However, discretion means legal discretion, "in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly." State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966). Accordingly, "[i]f the trial judge misconceives the applicable law or misapplies it . . . the exercise of legal discretion lacks a foundation and becomes an arbitrary act." Ibid.

Generally, there is a "preference to try co-defendants jointly," State v. Robinson, 253 N.J. Super. 346, 364, (App. Div.), certif. denied, 130 N.J. 6, (1992), particularly when "much of the same evidence is needed to prosecute each defendant." State v. Brown, 118 N.J. 595, 605 (1990). However, "the interest in judicial economy cannot override a defendant's right to a fair trial." State v. Sanchez, 143 N.J. 273, 282 (1996). For example, severance should be granted where co-defendants have antagonistic defenses that are prejudicial to one another. State v. Morant, 241 N.J. Super. 121, 133 (App. Div.), certif. denied, 127 N.J. 323 (1990).

Here, the issue of whether the trial court abused its discretion in denying the motion for severance turns on whether the court erroneously denied defendant's motion to present evidence concerning Rodriguez's belief that Yamilet Duran and Morales were members of the MS-13 street gang.

A reviewing court grants substantial deference to a trial court in making discretionary evidentiary decisions and reviews them for abuse of discretion. State v. Burda, 195 N.J. 278, 294 (2008). Only where there is a clear error of judgment should the appellate court disturb the trial court's determination. State v. Marrero, 148 N.J. 469, 484 (1997).

A defendant's right to confront witnesses is guaranteed by both the Federal and New Jersey Constitutions. State v. Bubis, 125 N.J. 519, 530 (1991). This right of confrontation affords a defendant the opportunity to question the State's witnesses, protects against improper restrictions on the questions asked during cross-examination, and affords the accused the right to elicit favorable testimony on cross-examination. Id. at 530-31.

However, there are limits on the constitutional right to confrontation. "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Del. v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986).

Nonetheless, a defendant must be given an opportunity to adequately cross-examine an adverse witness to uphold the defendant's constitutional right to a fair trial. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347, 353 (1974). "It is well established that '[e]very fact or circumstance tending to show the jury the witness' relation to the case or the parties is admissible to the end of determining the weight to be given to his evidence.'" State v. DiRienzo, 53 N.J. 360, 383 (1969) (quoting State v. Spruill, 16 N.J. 73, 78 (1954)).

In Davis, the defendant was convicted of grand larceny and burglary following a trial during which the defendant was prohibited from cross-examining the prosecution's primary witness regarding his adjudication as a juvenile delinquent and probation status. Supra, 415 U.S. at 314, 94 S. Ct. at 1109, 39 L. Ed. 2d at 352. The defendant sought to question the witness on these matters to impeach the witness's credibility by showing that he acted out of fear or concern of possible jeopardy to his probation, misidentifying the defendant as one of two men he saw standing near his home where a stolen safe had been found. Id. at 312, 94 S. Ct. at 1108, 39 L. Ed. 2d at 351. In so doing, the defendant attempted to expose the witness's state of mind when the witness discovered the safe near his home, ibid., the witness having "denied that he was upset or uncomfortable about the discovery of the [stolen] safe" so near his property. Ibid.

The United States Supreme Court noted that the witness's denial went unchallenged by the defendant because he was prohibited from making inquiry into the witness's juvenile record, thus proffering a potential motive for the witness to have lied. Id. at 313-14, 94 S. Ct. at 1109, 39 L. Ed. 2d at 352. The Court stated:

[t]he witness was in effect asserting, under protection of the trial court's ruling, a right to give a questionably truthful answer to a cross-examiner pursuing a relevant line of inquiry; it is doubtful whether the bold "No" answer would have been given by [the witness] absent a belief that he was shielded from traditional cross-examination. It would be difficult to conceive of a situation more clearly illustrating the need for cross-examination.

[Id. at 314, 94 S. Ct. at 1109, 39 L. Ed. 2d at 352.]

"While counsel was permitted to ask [the witness] whether he was biased, counsel was unable to make a record from which to argue why [the witness] might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial." Id. at 318, 94 S. Ct. at 1111, 39 L. Ed. 2d at 355. In holding that the trial court had committed constitutional error in denying the defendant his right of effective cross-examination, the Court explained, "it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Ibid.

In DiRienzo, our Supreme Court determined that a witness's prior statement that she feared the defendant was admissible for two purposes. Supra, 53 N.J. at 383. First, to impeach the witness's credibility by using her prior inconsistent statement, the witness having denied that she had made the prior statement. Ibid. Second, "it [was] relevant to the weight to be attributed a witness's testimony to show that the witness may be testifying in fear of retaliation by the defendant." Ibid.

Here, at the N.J.R.E. 104 hearing, defendant proffered a reason why Rodriguez may have identified her and not her daughter as the person who slashed her face, but the court denied defendant the opportunity to place that evidence before the jury. Although the court permitted defendant to ask generally whether Rodriguez feared the co-defendants, this manner of general cross-examination was found insufficient in Davis, and is similarly insufficient here. Because Rodriguez admitted that at the time of the incident she believed Yamilet Duran and Morales were members of the MS-13 street gang and feared them because the gang retaliates against individuals who testify against its members, defendant should have been permitted to introduce that evidence for the jury's consideration in weighing Rodriguez's credibility. DiRienzo, supra, 53 N.J. at 383. In so holding, we agree with the trial court's concern of prejudice to co-defendants if evidence concerning their gang affiliation was placed before the jury. However, that prejudice could have been cured by severing defendant's trial from co-defendants' trial.

The defenses of defendant and Yamilet Duran were antagonistic to each other. Defendant insisted that her daughter was the person who slashed Rodriguez, while her daughter asserted that defendant perpetrated the crime. These defenses met the heightened standard of mutual exclusivity of Brown. Supra, 170 N.J. at 160.

Denying severance compromised the constitutionally-guaranteed right of defendant to confront her accuser. The court protected co-defendants against prejudice by prohibiting reference to the MS-13 street gang, but by doing so, it barred evidence that the jury should have considered in evaluating Rodriguez's testimony. Accordingly, we conclude that the trial court abused its discretion in denying the motion to severe defendant's trial from co-defendants' trial.

What is more, we conclude that the trial court's refusal to allow defendant to cross-examine Rodriguez on co-defendants' gang affiliation warrants reversal. In so deciding, we apply the harmless error standard of review. Van Arsdall, supra, 475 U.S. at 674, 106 S. Ct. at 1433, 89 L. Ed. 2d at 680.

Under that standard, error will not cause reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2. Not every error will warrant setting aside a conviction and ordering a new trial. In evaluating a claim of plain error or harmful error, the fundamental question to be answered is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred. State v. Macon, 57 N.J. 325, 335-36 (1971). If the possibility of an unjust result is sufficient to raise reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached, a new trial is required. State v. Walden, 370 N.J. Super. 549, 562 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Here, Rodriguez's testimony was crucial to the State's case. Her testimony was the only direct evidence that defendant assaulted Rodriguez with the knife. Indeed, there was evidence presented by defendant and co-defendants to the contrary. Defendant denied being involved in the assault, and Yamilet Duran testified that she was the individual who had slashed Rodriguez's face. The trial court's ruling, prohibiting defendant from presenting evidence concerning Rodriguez's possible fear of gang retaliation at the time she identified defendant as the individual who assaulted her with the knife, may have led the jury to "a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

Because we reverse for the reasons argued in Point I of defendant's brief, we do not address the remaining arguments.

 
Reversed and remanded for a new trial.

The indictment incorrectly referenced the third-count as a crime of the third-degree. N.J.S.A. 2C:39-5d provides that any person who commits an act in violation of the statute "is guilty of a crime of the fourth-degree." Although it does not appear that the indictment was amended to correctly state the degree of the crime, the judgment of conviction, confirming defendant's acquittal of count three, does reference the offense as a crime of the fourth degree.

MS-13, also known as Mara Salvatrucha, is a violent street gang that originated in El Salvador and now spans both North and South America. See MS-13 Primer: 'The Most Dangerous Gang' In North America, (June 5, 2008), http://www.citytv.com/toronto/citynews/news/local/article/2342--ms-13-primer-the-most-dangerous-gang-in-north-america.

(continued)

(continued)

2

A-1920-06T4

April 1, 2010