STATE OF NEW JERSEY v. WILLIAM E. RIVERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2163-06T42163-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM E. RIVERA aka JUAN RIVERA,

Defendant-Appellant.

_______________________________________

 

Argued October 5, 2009 - Decided

Before Judges Rodr guez, Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-09-01153.

Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Taylor, of counsel and on the brief).

Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Liebman and Kimberly Donnelly, Legal Intern, on the brief).

PER CURIAM

Defendant William Rivera was tried before a jury and found guilty of first degree murder, contrary to N.J.S.A. 2C:11-3a(1) and a(2), and second degree desecration of human remains, contrary to N.J.S.A. 2C:22-1a(2). Defendant appeals from his conviction and the sentences imposed. We affirm.

I.

We begin with a summary of the key evidence presented at trial. Defendant was married to Ana Lucrecia Rivera (Ana); however, in 1995, they separated and defendant returned to his home country of Guatemala. Ana moved to North Plainfield with two children from an earlier marriage. In 2004, defendant returned to the United States and at some point began to date Ana. Ana's son Andres Castillo (Castillo) and her sister Liana Garcia testified that they were unaware that Ana had resumed her relationship with defendant.

Defendant's brother, Manuel Rivera (Rivera), resided with defendant and their mother in a house in Plainfield. Defendant slept in a small bedroom on the first floor. Rivera testified that he was aware that defendant and Ana were dating. He said that at approximately 8:30 p.m. on February 28, 2004, Ana pulled up to the house in her car. Defendant left the house, and drove off with Ana in her car. They returned to the house around 10:30 p.m., walked through the kitchen and entered defendant's bedroom. When Rivera retired to his room, he noticed that the television was on in defendant's bedroom.

Later that evening, defendant woke Rivera. Defendant had wounds on his neck and chest. Defendant claimed that Ana tried to kill him. Defendant told Rivera that Ana was dead, gave him his wallet and watch and said that he should take care of his children. Rivera acknowledged that, in his grand jury testimony, he had testified that defendant said that Ana stabbed him and, after trying to kill him, she tried to cut off her own breasts. Rivera phoned the police. The police reported to the scene and found defendant at the top of the stairs, bleeding from his chest. He was removed to a nearby hospital.

Rivera led the police to defendant's bedroom, where they found Ana's dead body in the bed, with the covers pulled up to her nose. Jeffrey J. Carrier of the Plainfield Police Department testified that they pulled back the covers and "discovered the victim had been sliced almost in half from her neck down to her vagina and it was open and there was a knife in her hand."

An autopsy was performed upon Ana's body. Dr. Leonard Zaretski (Zaretski), Union County's Medical Examiner, testified that Ana died as a result of certain stab wounds inflicted with a knife. Zaretski said that additional stab wounds had been inflicted after Ana died. He also stated that Ana's breasts and genital organs had been cut and removed after her death.

Defendant did not testify at trial. He presented testimony from Dr. Robert Latimer (Latimer), a forensic psychiatrist, in support of his insanity defense. According to Latimer, at the time he killed and desecrated Ana's remains, defendant "was suffering from an acute psychiatric condition known as brief psychotic reaction or disorder[.]" He said that this is a condition that "is manifested by excessive turmoil, confusion, violence, disorganized behavior and . . . frequently ends up in either homicide or suicide[.]"

Latimer stated that he believed that defendant had experienced a "catathymic crisis," which he described as a break down of the emotions. Latimer asserted that such a crisis can result from an emotional upset that "disturbs" an individual's thinking and behavior. He explained that this is usually related to a "complex which includes feelings of abandonment, rejection, humiliation, embarrassment, inferiority and above all . . . sexual impotence."

Latimer noted that, after defendant returned to Guatemala, he was involved in a severe car accident in which his penis and bladder were crushed. Defendant apparently underwent surgery to repair his penis and had to use a catheter to discharge his bladder. According to Latimer, defendant's leg "withered." He limps and suffers from other health problems. Defendant told Latimer that he was incapable of having an erection.

Latimer testified defendant said that, on the evening of February 28, 2004, he informed Ana he was going to return to Guatemala. According to defendant, Ana told him that he could only leave when she let him. Defendant said that Ana began to "[claw] at him" and kept telling him that she wanted "to go to hell with him." Defendant told Latimer that he felt humiliated because he could not get an erection.

Defendant also told Latimer that he "was nobody to" Ana. He "felt confused" and his "mind became clogged up." He stated that Ana grabbed the hair on his chest and laughed at him. Defendant felt embarrassed because he "used to be a man." Defendant reported that he had five drinks and performed oral sex upon Ana. They caressed and kissed. Defendant said that he began to doze off and the last thing he remembered was running out of the room, looking back and seeing Ana there "smiling[.]"

Latimer acknowledged that defendant had placed a knife in Ana's hand after she was dead. He stated that he believed this was "a momentary attempt of him to organize the crime scene." Latimer said that defendant had insisted that he did not put the knife in Ana's hand. Defendant told Latimer that he did not recall doing that.

According to Latimer, defendant's placement of the knife in Ana's hand "had to be an automatic act." He described it as an "act done during a period of dissociation where [defendant] didn't know exactly what he was doing[.]" Latimer said that defendant "was in a panic state[,]" and walked out of the room. Latimer also said that defendant did not "know what he was doing." Latimer opined that defendant "had a brief period of insanity."

On cross examination, Latimer conceded that defendant did not have a history of mental illness, delusions, hallucinations, disorganized speech or grossly disorganized behavior. Latimer also acknowledged that a psychologist had administered certain psychological tests to defendant, including the Minnesota Multiphasic Personality Inventory (MMPI) and the Millon Clinical Multiaxial Inventory (MCMI) tests. The psychologist had reported that "defendant deliberately responded to the test questions on the MMPI in an exaggerated manner" and gave "unreliable" answers to the MCMI.

Latimer further acknowledged that the criteria for Brief Psychotic Disorder in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, requires that the episode last for at least one day. On direct examination, Latimer had testified that defendant's disorder was like a "lightning flash." On cross examination, Latimer stated that the episode began while defendant was in bed around 10:30 p.m. and lasted "a number of hours after that." He maintained that defendant still has residual symptoms of the disorder.

Latimer further testified that defendant recalled everything that happened until the time he says he fell asleep. Latimer conceded, however, that he did not know what happened and he was relying upon what defendant told him about what occurred in his bedroom on the night of February 28, 2004.

The State presented testimony from forensic psychiatrist Dr. Howard Gilman (Gilman). Gilman said defendant "kn[ew] what he was doing" when he committed the charged offenses. According to Gilman, defendant "had full appreciation of his actions" and "full appreciation of the wrongfulness of murder and desecration." He said that defendant had not been truthful in his interviews with Latimer, and defendant's responses to the questions on the two psychological tests were invalid.

In his closing argument, defense counsel argued that defendant "should be found not guilty because he's insane." The prosecutor argued, however, that the evidence showed that defendant had acted purposely and knowingly when he killed Ana and desecrated her remains. As stated previously, the jury found defendant guilty of both charges.

On this appeal, defendant raises the following arguments for our consideration:

POINT I

SINCE THERE WAS EVIDENCE THAT DEFENDANT DID NOT ACT KNOWINGLY OR PURPOSELY DURING THE OFFENSES, THE ABSENCE OF AN INSTRUCTION ON DIMINISHED CAPACITY REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL (Not raised below).

POINT II

SINCE THE COURT IMPROPERLY ADMITTED EVIDENCE THAT DEFENDANT'S STEP-CHILDREN SUDDENLY "DISLIKED" AND "HATED" HIM FOR SOME MYSTERIOUS REASON PRIOR TO THE HOMICIDE WITH NO CURATIVE INSTRUCTION, DEFENDANT'S CONVICTIONS MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL. (Partially raised below).

POINT III

THE MAXIMUM LIFE-TERM OF IMPRISONMENT SUBJECT TO THE [NO EARLY RELEASE ACT] 85% PAROLE BAR FOR MURDER WAS EXCESSIVE.

II.

We turn first to defendant's contention that he is entitled to a new trial because the trial court failed to instruct the jury on diminished capacity. At trial, defendant's attorney did not seek this instruction. Therefore, we must determine whether the absence of the charge was erroneous and, if so, whether the error was clearly capable of producing an unjust result. R. 2:10-2.

"Insanity is an affirmative defense which must be proved by a preponderance of the evidence." N.J.S.A. 2C:4-1. The insanity defense relieves a person of criminal responsibility for criminal conduct:

if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.

[Ibid.]

The diminished capacity defense is recognized in N.J.S.A. 2C:4-2, which provides in pertinent part that "[e]vidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense." A defendant does not have the burden of proof on diminished capacity. State v. Galloway, 133 N.J. 631, 640-41 (1993). Rather, the State has the burden of proving beyond a reasonable doubt that the defendant acted with the necessary mental state, despite evidence of a mental disease or defect. Ibid.

The diminished capacity instruction informs the jurors that they should consider all evidence of defendant's mental state in deciding whether the State has proven all of the elements of the charged offense beyond a reasonable doubt. State v. Delibero, 149 N.J. 90, 106 (1997). In Galloway, the Court explained that

all mental deficiencies, including conditions that cause a loss of emotional control, may satisfy the diminished-capacity defense if the record shows that experts in the psychological field believe that that kind of mental deficiency can affect a person's cognitive faculties, and the record contains evidence that the claimed deficiency did affect defendant's cognitive capacity to form the mental state necessary for the commission of the crime.

[Galloway, supra, 133 N.J. at 647.]

At trial, Latimer testified that, at the time defendant killed Ana and desecrated her remains, he was suffering from a mental disorder, specifically Brief Psychotic Disorder. Latimer said that defendant suffered from a brief period of insanity and did not act knowingly. As noted previously, Gilman disputed Latimer's opinion, and testified that defendant "kn[ew] what he was doing" when he committed the charged offenses.

We are convinced that the trial court erred by failing to charge the jury on diminished capacity. In our view, Latimer's testimony provided a sufficient factual basis for the instruction. However, we are not convinced that the lack of the instruction rose to the level of plain error.

Here, the trial court instructed the jury to consider Latimer's and Gilman's testimony in determining whether defendant had established his insanity defense. Because defendant did not dispute that he killed Ana and desecrated her remains, the critical issue for the jury to resolve was whether defendant acted purposely and/or knowingly in doing so. The jury rejected the insanity defense and determined that the State had proven all elements of the charged offenses beyond a reasonable doubt.

We must assume that, in reaching the verdict, the jury abided by the court's instruction and considered Latimer's and Gilman's testimony. We are convinced that the State's evidence that defendant acted purposely and/or knowingly was so strong that it is highly improbable the jury would have come to a different decision if it had been charged on diminished capacity. Therefore, we conclude that the absence of the charge was not an error clearly capable of producing an unjust result. R. 2:10-2.

Defendant argues, however, that the trial court's failure to charge the jury on diminished capacity requires reversal of his conviction. In support of this contention, defendant relies upon our decision in State v. Nataluk, 316 N.J. Super. 336 (App. Div. 1998). In Nataluk, the defendant was found guilty of criminal mischief, possession of a weapon for an unlawful purpose and eluding. Id. at 340. The evidence established that the defendant had driven to a store that was owned and operated by a friend and business associate and fired two bullets into the store's window. Id. at 341. The defendant then got into his car and drove away. Ibid. The police responded to the scene and pursued the defendant. Ibid. The defendant continued driving and ignored the signals of the police; however, he did not speed up. Ibid. Eventually, the defendant stopped and he was arrested. Ibid.

At trial, the defendant presented testimony from a psychiatrist in support of an insanity defense. Id. at 342-43. The psychiatrist testified that the defendant had previously sustained brain injuries that damaged the portion of the brain responsible for impulse control. Id. at 342. The psychiatrist opined that the defendant suffered from bipolar disorder, amnesia and the results of abusing alcohol and drugs. Ibid. The psychiatrist asserted that the defendant was not aware of his actions and was insane on the night in question. Id. at 342-43.

We held that the evidence warranted an instruction on diminished capacity, noting that if the jury accepted the psychiatrist's testimony, the defendant would not be guilty of the charged offenses "because he would not have acted knowingly or purposefully." Id. at 346. We commented that "the entire factual pattern was bizarre" and the defendant's actions "made no sense." Ibid. We stated that

[e]ven though the jury rejected [the defendant's] insanity claim, it is not inconceivable that it could have accepted the diminished capacity defense - or, to phrase the proposition more accurately, it could have concluded that there was reasonable doubt as to whether defendant was aware of what he was doing and had the requisite state of mind for a finding of guilt on the charges against him.

[Id. at 347.]

We added that "'the jury might well have assessed [the] defendant's state of mind differently had it been specifically instructed that the proofs concerning his mental condition could bear on his ability to act purposely or knowingly.'" Ibid. (quoting State v. Serrano, 213 N.J. Super. 419, 424-25 (App. Div. 1986), certif. denied, 107 N.J. 102 (1987)).

In our judgment, defendant's reliance upon Nataluk is misplaced. In Nataluk, the defendant's actions were inexplicable, whereas in this matter defendant's actions could be rationally explained by the anger and humiliation he said he felt when Ana taunted him. Moreover, in Nataluk, the defendant had sustained physical injuries to his brain that affected his cognitive abilities. Defendant sustained no such injuries. Furthermore, it is highly improbable that after having rejected Latimer's opinion and defendant's insanity defense, the jury would have found that his testimony raised reasonable doubt as to whether defendant acted purposely and/or knowingly.

Indeed, the jury had ample reason to reject Latimer's testimony. As we have explained, Latimer opined that defendant was suffering from a Brief Psychotic Disorder. He stated that the criteria for such a diagnosis requires that the episode last at least a full day and yet he described defendant's disorder as a "lightning flash." Latimer also stated that defendant did not know what he was doing when he killed Ana and desecrated her body but essentially conceded that the placement of the knife in Ana's dead hand was a purposeful act to "organize the crime scene." In addition, Latimer's opinion was based upon defendant's statements to him, but defendant told Latimer that he did not recall what happened at the time the offenses were committed.

We therefore conclude that the trial court's failure to instruct the jury on diminished capacity was not an error clearly capable of producing an unjust result. R. 2:10-2.

III.

Next, defendant contends that the trial court erroneously permitted Castillo to testify that he and his sister "dislike[d]" and "hated" defendant after he returned to Guatemala. Defendant contends that the testimony was evidence of other bad acts and it was inadmissible under N.J.R.E. 404(b). Defendant asserts that Castillo's statement left a "sinister impression" upon the jury. Defendant maintains the court should have stricken Castillo's statement and instructed the jury to disregard his testimony.

We agree that the court should not have permitted Castillo to testify that he and his sister "dislike[d]" and "hated" defendant. However, the error was harmless. Castillo did not explain the basis for his statement. He did not say that defendant had committed some or other wrongful conduct. We reject defendant's assertion that Castillo's comment left "limitless" scenarios to the jury's imagination and undermined his insanity defense. We are satisfied that, in view of the overwhelming evidence of defendant's guilt, the admission of Castillo's comment was not "clearly capable of producing an unjust result[.]" R. 2:10-2.

IV.

Defendant also argues that his sentence is excessive. Here, the trial court found the following aggravating factors: N.J.S.A. 2C:44-1a(1) (the nature and circumstances of the offense and the role of the defendant therein, including whether the offense was committed in an especially heinous, cruel or depraved manner); N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The court found no mitigating factors and sentenced defendant to life imprisonment for murder, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a ten-year consecutive term for the desecration of human remains.

Defendant argues that the court erred by finding aggravating factor one. He maintains that the court should not have found aggravating factor three and instead should have found a mitigating factor under N.J.S.A. 2C:44-1b(7) because he has no prior record of any criminal convictions. Defendant also argues that the court should have found a mitigating factor under N.J.S.A. 2C:44-1b(4) because his mental and emotional problems tended to excuse his conduct. Defendant further argues that the court should have considered the NERA parole consequences and imposed less than a life sentence.

 
We find no merit in these arguments. We are satisfied that the sentence imposed by the trial court is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

(continued)

(continued)

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A-2163-06T4

March 19, 2010