STATE OF NEW JERSEY v. JESSIE SEPULVEDA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESSIE SEPULVEDA,

Defendant-Appellant.

____________________________________

October 28, 2013

Submitted October 21, 2013 Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-09-3493.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jessie Sepulveda appeals from the June 6, 2008 judgment of conviction for first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).1 After merger, Sepulveda was sentenced to an aggregate term of life imprisonment without the possibility of parole. After reviewing the record through the lens of the arguments made by the parties, we affirm.

I.

In the early morning of October 2, 2004, Sepulveda went on a walk with acquaintances Jonathan Cintron, Miguel Morales, and David Gomez in Camden. The men had been engaged in the sale of controlled dangerous substances the day before.

As the men were strolling around, Gomez stopped to talk to twelve-year old Pedro Molina, who was sitting on the front steps of his house listening to the sounds from a portable radio. Gomez walked inside the fence to talk to Molina, and playfully "snatched the radio." Just as Gomez was about to return the radio, Sepulveda fired shots at Molina, striking the boy twice. One bullet struck the left side of his chest and pierced his heart; the other entered his abdomen and exited the back. Molina later died because of these gunshots.

After hearing the shots, Cintron and Morales ran away. Gomez testified that after the shooting he and Sepulveda walked away to get in Sepulveda's red Jeep. At this time, Gomez still had Molina's radio in his hand. They met Cintron and Morales later that day. Both Cintron and Gomez testified that Sepulveda told them that if they said anything about what happened Sepulveda would kill them. According to Gomez, Sepulveda also stated, "he [wasn't] going to jail, he [wasn't] going back to jail."

On October 29, 2004, Cintron was arrested on an unrelated charge. While in custody, Cintron told a sheriff's officer that he had information about a shooting. Cintron subsequently spoke to homicide investigators, and told them what he knew about the Molina shooting.

On November 1, 2004, police arrested Gomez and Sepulveda in connection with the shooting. Gomez provided a statement to police, describing what had happened and implicating Sepulveda. Gomez and Sepulveda were subsequently charged with first-degree murder for the death of Molina.

On September 8, 2006, pursuant to a plea arrangement, Gomez pled guilty, and was convicted of second-degree manslaughter for his role as an accomplice in the shooting death of Molina. He was subsequently sentenced to seven years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Gomez testified that while he was incarcerated he received letters from Sepulveda. Gomez claimed that in these letters Sepulveda asked Gomez to sign an affidavit recanting his statement that Sepulveda had shot Molina. Gomez also testified that Sepulveda had asked him to sign this affidavit in person. Gomez gave the letters to his lawyer and subsequently requested to be placed in protective custody because he felt threatened by Sepulveda.

Sepulveda elected not to testify at trial. Although he called no live witnesses, Sepulveda did introduce and play for the jury the audio recording of the 9-1-1 calls placed on October 2, 2004, with respect to the Molina shooting.

In summation, defense counsel argued that the shooter was Gomez, not Sepulveda. He based this argument on reports of the shooter's skin color, on the trajectory of the bullets and the location of shell casings, and the letters written to Gomez. Counsel argued that the likely author of the letters was not Sepulveda, but rather was Gomez's brother. However, if the jury were to conclude that Sepulveda wrote the letters, it was argued that Sepulveda did so as consciousness of innocence and out of a desire that Gomez tell the truth about who actually shot Molina.

Notwithstanding defense counsel's advocacy, the jurors unanimously found Sepulveda guilty of all of the charges submitted to them. Later, the same jurors unanimously concluded that the victim of Sepulveda's crime was less than fourteen years old, which qualified Sepulveda for increased sanctions.

After the jury was discharged, the trial court separately considered the certain persons charge. Relying upon the evidence presented during the immediately preceding jury trial, as well as Sepulveda's prior judgments of conviction, the court concluded, "the State has proven . . . each and every essential element of this charge beyond a reasonable doubt and I find the defendant guilty."

On appeal, Sepulveda raises three previously unaddressed issues for our consideration:

POINT I: THE COURT ERRED IN FAILING TO PROVIDE THE TYPE OF TAILORED INSTRUCTION REGARDING OTHER-CRIMES/PRIOR-INCARCERATION EVIDENCE THAT IS REQUIRED BY STATE V. COFIELD. (Not Raised Below)

POINT II: THE COURT ERRED IN FAILING TO INSTRUCT THE JURORS THAT BEFORE THEY WERE PERMITTED TO CONCLUDE THAT LETTERS ALLEGEDLY WRITTEN BY DEFENDANT ESTABLISHED CONSCIOUSNESS OF GUILT, THEY FIRST HAD TO DETERMINE THAT DEFENDANT ACTUALLY WROTE THOSE LETTERS AND THAT THE LETTERS INDEED INDICATED HIS CONSCIOUSNESS OF GUILT. (Not Raised Below)

POINT III: THE CONVICTION FOR POSSESSION OF A FIREARM BY A CONVICTED FELON MUST BE REVERSED BECAUSE THE COURT DEPRIVED DEFENDANT OF THE PRESUMPTION OF INNOCENCE AND THE REQUIREMENT THAT EACH ELEMENT OF THE OFFENSE MUST BE PROVEN BEYOND A REASONABLE DOUBT WHEN IT TOOK JUDICIAL NOTICE OF AN ELEMENT OF THE OFFENSE. (Not Raised Below)

We are not persuaded by any of these contentions.

II.

Sepulveda argues that the jury heard evidence that he was a drug dealer and had been to jail and that the absence of a curative instruction makes this reversible error. He contends that State v. Cofield, 127 N.J. 328 (1992), requires a limiting or curative instruction and that the trial court had a duty to provide one, even though counsel did not make the request. Moreover, Sepulveda maintains that the trial court had a duty to instruct the jurors not to consider Sepulveda's prior incarceration in their deliberations and that this failure was plain error. We disagree.

Because these contentions are being raised for the first time on appeal, we review them under the plain error standard, namely, whether the court's putative errors created the "possibility of injustice sufficient to 'raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Barden, 195 N.J. 375, 394 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Under this standard of review, we find no error, let alone plain error.

Sepulveda urges that Cofield is dispositive for the proposition that a limiting instruction was required for the handful of references to drug dealing and one mention of prior incarceration. In Cofield, the Court looked at the issue of a limiting instruction to the jury regarding other-crime evidence admitted in the trial. 127 N.J. at 340-41. The Court held that the jury instruction regarding this evidence had to be different from the general evidence instruction, specifically stating the purpose for which the other-crime evidence could be considered, as well as the purposes for which it may not be considered. Id. at 341.

"Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. Harper, 128 N.J. Super. 270, 277 (App. Div.) (but noting that reversal is not automatically foreclosed by intentional acts of counsel), certif. denied, 65 N.J. 574 (1974). In the present case, there were no objections to any of the references to Sepulveda's drug trafficking activities. The reason for this state of affairs is obvious: the drug dealing allegations were injected into the trial by defense counsel in an effort to impair the credibility of Cintron and Gomez. Not only did defense counsel not object, but also he actually followed up on the idea that Cintron and Sepulveda were dealing drugs, asking, "It s your testimony [Sepulveda is] a drug dealer?" Later, defense counsel vigorously questioned Gomez about Sepulveda's involvement in drug dealing, even asking Gomez to clarify Sepulveda's position in the business.

Thus, not only did defense counsel not object to any erroneous mentions of Sepulveda's bad acts, but also he actually induced testimony about these same bad acts in a strategic effort to help his client's cause. Given that defense counsel was well aware of the facts, it is fair to assume that he knew that questions about Cintron or Gomez s relationship with Sepulveda would necessarily raise the issue of Sepulveda's drug activities. Moreover, even assuming the trial court erred in not stepping in on its own to mitigate the perceived prejudice, the error was nevertheless harmless because the evidence against Sepulveda was overwhelming.

Sepulveda next argues that the trial court committed reversible error by failing to instruct the jury regarding the letters written to Gomez and the way in which they could be used to establish consciousness of guilt. Sepulveda asserts that the trial court should have given an instruction similar to that developed by the Court in State v. Mann, 132 N.J. 410 (1993) (an instruction regarding the relationship between flight and consciousness of guilt should set out that the jury must first find there was flight and only then should determine a motive). Thus, Sepulveda maintains that the jury should have been instructed to first determine whether he actually wrote the letters, whether the letters indeed threatened Gomez, and only then whether the letters demonstrated a consciousness of guilt. Sepulveda also claims that the jurors should have been given specific instructions that if they credited the defense theory that Gomez's brother wrote the letters or, alternatively, that Sepulveda wrote the letters because he was actually innocent, then they could not find consciousness of guilt.

As we previously noted, the standard of review for a missing jury instruction, when a defendant did not object at trial, is whether there was plain error "clearly capable of producing an unjust result." R. 2:10-2. Given the contents of the letters, the circumstances and timing under which they were received, and the vigorous challenges lodged by defense counsel against Gomez, we disagree that a specially-tailored jury instruction was necessary.

Defense counsel neither requested a particularized jury charge regarding the letters nor did he object to the general instructions. The jury did receive a standard instruction concerning how to make factual findings and assess credibility. Since much of the case hinged on the credibility of Gomez, the jurors were properly instructed, and accordingly they considered the letters in light of their credibility assessment of the witness. Even defense counsel s alternative explanations come down to credibility determinations, asking the jury to decide whether Gomez was telling the truth about the letters, or asking the jury to make an assumption about what Sepulveda's purpose could have been in writing them. In short, we discern nothing about the absence of a detailed jury charge concerning the jurors' treatment of the letters that would impel a reversal of the judgment of conviction.

Lastly, Sepulveda argues that the trial judge failed to properly find a crucial element of N.J.S.A. 2C:39-7(b), that Sepulveda actually possessed a weapon. He contends that the judge, by taking judicial notice of the jury's verdict on the other weapons charges, improperly relieved the State of its burden to prove each element of the offense beyond a reasonable doubt, thus constituting harmful error because it infringed on the presumption of innocence. Our review of the entire record convinces us that this argument is wholly without merit and unworthy of discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following brief remarks.

The trial judge heard all the evidence presented in the jury trial, and both parties submitted this evidence at the bench trial. The judge was thus free to consider the evidence admitted when coming to a verdict.

The judge heard testimony from Gomez and Cintron that they saw Sepulveda shoot Molina. Cintron specifically testified that he saw Sepulveda holding a gun. Other witnesses provided clear evidence that someone had a gun at the scene that night. Thus, even though the judge's analysis was cursory and did not specifically articulate any credibility findings, there was an abundance of evidence that Sepulveda, did, in fact, possess a weapon that day.

1 All of the charges were tried by a jury, except for the certain persons offense. Sepulveda waived a jury and the matter was the subject of a bench trial that was conducted immediately following the jury's verdict.