STATE OF NEW JERSEY v. ANGEL HERNANDEZ,

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5816-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ANGEL HERNANDEZ, a/k/a ACE,

Defendant-Appellant.

____________________________________________

August 17, 2011

 

Submitted October 25, 2010 - Decided

 

Before Judges A. A. Rodr guez and Grall.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 06-01-0121.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, on the brief).

 

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant Angel Hernandez was convicted of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2; murder, N.J.S.A. 2C:11-3(a)(2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). The judge imposed a life sentence subject to NERA1 for the murder conviction, and a consecutive twenty-year term for conspiracy to commit murder. We affirm.

At 4:45 a.m. on August 31, 2004, Trenton police found Alex Ruiz, badly injured and wearing only underwear, near a Route 29 entrance ramp. He appeared to have been strangled and was in a coma by the time police brought him to the hospital. Later that morning, Jeri Lyn Dotson's daughter reported to a neighbor that her mother was dead. The police arrived and found Dotson at the bottom of the basement stairs, lying on her back in a pool of blood." She died from a gunshot wound to the back of the head only hours before.

Prior to the summer of 2004, Ruiz was a member of a Trenton gang called the Netas. Although Ruiz was a Neta, Jose Negrete, the leader of the Trenton Latin Kings (Kings), invited Ruiz to join the Kings. Ruiz agreed.

Disassociated Neta members must survive a savage beating known as a beatdown. Unbeknownst to Ruiz, Negrete had surreptitiously agreed to allow the Netas to abduct Ruiz for a beatdown. Believing that the Netas would kill Ruiz, Negrete was surprised to learn later that day that Ruiz had survived the beatdown. Intending to take care of it, Negrete ordered several Kings to abduct Ruiz from Dotson s house and kill him that night.

The men went to Dotson s house and forced Ruiz into their car. After strangling him with wire, the men left Ruiz for dead in a dumpster on Duck Island. Ruiz, however, survived and crawled to the Route 29 entrance ramp where police found him.

After the Kings reported Ruiz dead, Negrete learned that Dotson had witnessed the abduction. Fearing that she would inform police, Negrete ordered defendant, Joey Martinez, Jose Maldonado, and Maurice Young to kill Dotson. According to defendant, Negrete threatened to kill him if he did not kill Dotson.

Defendant, Maldonado and Young entered the Dotson residence at about 3:00 a.m. Defendant told Dotson to go to the basement to get laundry. Young attempted to shoot her but his gun jammed. Defendant quickly grabbed a gun out of a nearby cabinet, and shot Dotson in the back of the head.

Police arrested defendant on February 25, 2005 for the murder. He signed a written confession in police custody on February 27, 2005.

Before closing arguments, defendant's counsel objected to the verdict sheet because the information about a lesser included charge should also be included on the sheet." The prosecutor agreed. On the verdict sheet, I assume there has to be some modification. . . . [I]f you find the defense of duress, or the state has not disproved duress beyond a reasonable doubt then there should be a finding of manslaughter. The judge confirmed, ruling that there will be a lesser included manslaughter" charge on the sheet.

After closing arguments, the judge again met with counsel to go over the jury charges. The judge modified [the murder charge] to just include murder, not aggravated manslaughter or reckless manslaughter, because the only way that the jury would find the lesser included would be by virtue of the law, which states, if duress applies to murder, it automatically becomes manslaughter.

With regard to duress defense, the judge explained that I do mention . . . in each question, the defense of duress, so I think overall, that s the proper way to handle it. Defense counsel agreed, and withdrew his objection to the verdict sheet.

The judge read to the jury the following instruction: Note that regarding the charge of murder, our law provides that the defense of duress is not available as an absolute defense. It is only available to reduce the degree of the crime to manslaughter. Regarding accomplice liability, the judge offered the following instruction:

[T]he state must prove beyond a reasonable doubt each of the following elements:

 

[1.] That [any or all of the codefendants] committed the . . . murder, of Jeri Lynn [sic] Dotson . . . .

[2. T]hat . . . [defendant] . . . did aid or agree or attempt to aid [the codefendants] in planning or committing all or any of these crimes.

[3. T]hat . . . [defendant's] purpose was to promote or facilitate the commission of the aforesaid offenses.

[4. T]hat . . . [defendant] possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act.

The jury verdict sheet consisted of a series of questions. Question 4 asked if the jury found defendant guilty or not guilty of the murder of Dotson. If they found him not guilty, the sheet instructed the jury to answer question 4.1. Question 4.1 asked: If your answer to Question 4 is NOT GUILTY, is the reason because of Defendant s claim of duress? Despite the agreement between counsel and the judge, there was no mention on the verdict sheet of the law requiring the court to convert an acquittal of murder based on duress to a conviction for manslaughter.

Defendant argues on appeal:

THE VERDICT SHEET AND INSTRUCTIONS MISLEADINGLY INDICATED THAT THE DURESS DEFENSE WOULD RESULT IN DEFENDANT S ACQUITTAL OF MURDER RATHER THAN HIS CONVICTION OF MANSLAUGHTER, IN VIOLATION OF DEFENDANT S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

 

Defendant argues that the verdict sheet was defective because it mislead the jury by only asking whether the jury found defendant guilty or not guilty of murder, without mention of manslaughter. Therefore, he contends, it could have appeared to the jury that they only convict defendant of murder or acquit him based on the defense of duress and absolve him from all liability for the shooting. We disagree.

We review an issue not raised at the trial court pursuant to the plain error standard, reversing only where an error is "clearly capable of producing an unjust result." R. 2:10-2. It is well-settled that "[i]t is the duty of the trial court to instruct the jury on the relevant legal principles, 'and counsel may justifiably assume that fundamental matters will be covered in the charge.'" State v. Warren, 104 N.J. 571, 578 (1986) (quoting State v. Green, 86 N.J. 281, 288 (1981)). Where a verdict sheet or instruction improperly addresses material issues, we presume plain error in the "absence of an objection." Id. at 578-79.

A defendant may prove the defense of duress if the defendant "engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person . . . which a person of reasonable firmness in his situation would have been unable to resist." N.J.S.A. 2C:2-9; see also State v. Fogarty, 128 N.J. 59, 70 (1992). This defense does not exculpate a defendant charged with murder, but will "reduce the degree of the crime to manslaughter." N.J.S.A. 2C:2-9(b).

Defenses that reduce charges have presented problems for the construction of jury charges and verdict sheets. For example, in Warren the defendant offered intoxication as a defense to murder. 104 N.J. at 573-74, 578. The jury charge related the intoxication defense to the murder but failed to explain that the jury could accept intoxication as a defense to murder and still convict him of manslaughter. Id. at 578. In reversing the conviction, the Supreme Court explained "the court unintentionally prevented defendant s conviction on the lesser included offenses . . . and forced the jury to choose between a murder conviction and an acquittal." Ibid.

In a prosecution for murder, duress operates differently than the intoxication defense at issue in Warren. A verdict of not guilty of a homicide committed purposely of knowingly based on intoxication, is not, by operation of law, converted to a conviction for a homicide committed recklessly. As Warren makes clear, the jurors must decide whether the defendant is guilty of lesser included offense, to which intoxication is not a defense. In contrast, when a jury finds that a defendant committed a purposeful or knowing homicide and acquits the defendant because the State has not disproved the defendant's claim of duress, the jurors have no additional findings to make. By operation of law, the court must enter a conviction for manslaughter. N.J.S.A. 2C:2-9b. This concept is far from intuitive. The jury cannot be expected to understand without direction from the judge, that the consequence of their not guilty verdict as to the charge of murder based on duress will be a conviction for murder that the court will reduce to a lesser charge by operation of law.

Here, the judge correctly instructed the jury that the defense of duress would not provide a complete defense to murder but would result in the court's entering a conviction for manslaughter. Despite the fact that the verdict sheet did not reiterate that principle, counsel and the judge agreed that the contents were adequate.

In State v. Gandhi, 201 N.J. 161, 196 (2010), the Supreme Court noted that "a verdict sheet is intended for recordation of the jury's verdict and is not designed to supplement oral jury instructions. See State v. Reese, 267 N.J. Super. 278, 287 (App. Div.), certif. denied, 134 N.J. 563, 636 A.2d 521 (1993)." The court then held:

Where we conclude that the oral instructions of a court were sufficient to convey an understanding of the elements to the jury, and where we also find that the verdict sheet was not misleading, any error in the verdict sheet can be regarded as harmless. [Id. at 197; Reese, supra, 267 N.J. Super. at 287-88]; State v. Vasquez, 246 N.J. Super. 528, 547 (App. Div.) (finding no reversible error where verdict sheet was erroneous but jury received proper oral instruction, because "[t]he jury is presumed to have understood [the] instructions" (citation omitted)), certif. denied, 134 N.J. 480 . . . (1993); see also Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 418 . . . (1997) (stating that judge's charge and interrogatories to jury do not provide grounds for reversal unless misleading, confusing, or ambiguous).

 

[Gandhi, supra, 201 N.J. at 197.]

 

Here, the instructions were clear and adequate to convey to the jury the elements of the offense charged, the defense of duress and its significance in this case. The jury verdict sheet was not a model of clarity, but it was not wrong or misleading. Therefore, we reject this contention. The questions for the jury were whether, by proof beyond a reasonable doubt, the State proved defendant's guilt of murder and that he was not acting under duress. Those essential determinations were stated on the verdict sheet.

Defendant also argues that:

INADEQUATE JURY INSTRUCTIONS ON THE DEFENSE OF DURESS AND ACCOMPLICE LIABILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

 

Defendant relies on State v. Savage, 172 N.J. 374, 388 (2002), contending that the judge erred in failing to specifically mold the facts of the case to the accomplice liability jury charge.2 Defendant also argues that because of the duress defense, the judge should have instructed the jury that they could find the defendant guilty of manslaughter despite finding that the principal actors committed murder. We disagree.

Reversal is appropriate if it cannot be said beyond a reasonable doubt that [the error] did not bring the jury to a result it might otherwise not have reached. Simon, supra, 79 N.J. at 208 (quotations omitted); R. 2:10-2. We must consider how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole. Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996), certif. denied, 149 N.J. 34 (1997).

A fair trial requires proper jury charges. State v. Collier, 90 N.J. 117, 122 (1982). If there is a rational basis for accomplice liability, the trial judge should give this instruction to the jury. State v. Hakim, 205 N.J. Super. 385, 388 (App. Div. 1988). Because accomplice liability is a complex issue, the instructions must be understandable. Savage, supra, 172 N.J. at 388. The judge must explain that it is essential that the jury find that the defendant shared in the intent which is the crime s basic element. State v. Fair, 45 N.J. 77, 95 (1965). Problems arise, however, when an alleged accomplice is charged with a different degree offense than the principal or lesser included offenses are submitted to the jury. State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993). Under those circumstances the judge must carefully delineate the requisite mens rea for each charge. Failure to do so is reversible error. Id. at 528, 534-35.

The rules of Savage and Bielkiewicz, however, are completely inapplicable to the present case. The judge did not charge the jury with any lesser-included offenses of murder, or ask the jury to render verdicts as to other defendants because they were not part of the trial. Most importantly, defendant did not argue that he had a different mens rea than the principal actors.

A defendant asserting duress admits that his act was intentional. The law, however, regards the act as less criminally culpable because of the loss of free will resulting from an external pressure. Consequently, by asserting the duress defense, defendant admits that he intended to kill Dotson because he believed that he would be killed if he did not. As such, the jury was not asked to determine if he had a different mens rea from the other principals, and a Bielkiewicz jury charge was inapplicable.

Moreover, even if Bielkiewicz was pertinent, the judge offered the instruction derived from that case:

An accomplice may be convicted on proof of the commission of the crime or of his complicity therein, even though the person who it is claimed committed the crime has not been prosecuted or has been convicted of a different offense or degree of offense . . . .

We reject defendant's challenge to his sentence. Defendant contends that the judge misapplied the aggravating factors in N.J.S.A. 2C:44-1(a). Specifically, defendant argues that the judge could not find a risk of recidivism because the defendant did not have a criminal record. We disagree.

The judge found that defendant s admitted illegal activity, long term steady marihuana use, run-ins with the criminal justice system as a juvenile and at the [m]unicipal [c]ourt level, were facts that created a risk of another similar offense. Indeed, the very circumstances that led [defendant] to commit the crime for which [he was] being sentenced, demonstrated that defendant would follow . . . orders, and . . . express the same lack of remorse.

We review the imposition of a sentence under the patent and gross abuse of discretion standard announced in State v. Roth, 95 N.J. 334, 364 (1984). We must conduct an examination of whether correct legislative . . . guidelines have been followed, review for substantial evidence in [the] record to support findings, and determin[e] whether [the] sentence shocks the judicial conscience. State v. Pierce, 188 N.J. 155, 166 (2006).

Pursuant to N.J.S.A. 2C:44-1(a)(3), a sentencing judge may consider [t]he risk that the defendant will commit another offense, as an aggravating factor for sentencing. In determining whether this factor applies, the judge may consider all relevant information, including hearsay. State v. Davis, 96 N.J. 611, 619-20 (1984). For example, a lack of remorse can be indicative of a risk that the defendant will commit another crime. See State v. Carey, 168 N.J. 413, 426-28 (2001). Although a defendant s criminal record demonstrates a propensity to commit future offenses, State v. Modell, 260 N.J. Super. 227, 254-56 (App. Div. 1992), certif. denied, 133 N.J. 432 (1993) (prior federal convictions), the absence of a criminal record does not foreclose a finding of a likelihood of recidivism. See, e.g., State v. Varona, 242 N.J. Super. 474, 491-92 (App. Div.), certif. denied, 122 N.J. 386 (1990) (possession of kilogram of cocaine suggested likelihood future offenses despite defendant s clean criminal record).

Here, the judge was free to consider defendant's criminal record which included a juvenile deferred disposition for simple assault and a municipal charge for defiant trespassing. The judge was also permitted to consider the general circumstances of the crime to determine the risk of the defendant committing another crime. See Varona, supra, 242 N.J. Super. at 491-92. There was also ample evidence in the record to support the judge s determination that defendant was willing to commit crimes when gang members ordered him to do so. Therefore, the judge did not err in applying the aggravating factors.

Defendant also argues that the murder and conspiracy

charges were closely related, because the attempted murder of Ruiz precipitated the murder of Dotson. As such, defendant contends that consecutive sentences were improper. We disagree.

The judge determined that the murder and conspiracy to commit murder convictions were sufficiently distinct because each involved different victims and motives. Further, the judge stressed the fact that if the conspiracy charge was not consecutive it would be totally eclipsed by the [sentence for] . . . murder," and would be an unacceptable free crime.

We review the imposition of consecutive sentences under an abuse of discretion standard. State v. Spivey, 179 N.J. 229, 245 (2004). A trial judge must consider the following factors:

there can be no free crimes in a system for which the punishment shall fit the crime;

the reasons for imposing . . . a consecutive sentence . . . should be separately stated in the sentencing decision;

some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

the crimes and their objectives were predominantly independent of each other;

the crimes involved separate acts of violence . . . ;

the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior.

 

[State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), superseded by statute, N.J.S.A. 2C:44-5.]

 

Multiple counts of murder presumptively justify consecutive sentences. State v. Serrone, 95 N.J. 23, 27-28 (1983). Consecutive sentences are also appropriate where a defendant attempted, but failed, to kill another victim. See State v. Russo, 243 N.J. Super. 383, 413-14 (App. Div. 1990), certif. denied, 126 N.J. 322 (1991). Because the New Jersey criminal code treats conspiracy and attempt equally for purposes of the grading of offenses, one count of murder and one count of conspiracy to commit attempted murder of two different victims justify consecutive sentences. See N.J.S.A. 2C:5-4.

Here, the conspiracy to commit attempted murder of Ruiz and the murder of Dotson involved two separate objectives and two distinct acts of violence committed at different times and places. Thus, the law and record amply support the judge s decision to impose consecutive sentences.

Affirmed.

1 No Early Release Act, N.J.S.A. 2C:43-7.2.

2 We do not address this portion of the argument because it is simply without merit. R. 2:11-3(e)(2). Not only did the judge offer a thorough explanation of accomplice liability, the judge also crafted the charge to include the names of the defendants and the crimes for which they were charged.