STATE OF NEW JERSEY v. MYRNA DIAZ

NOT FOR PUBLICATION WITHOUT THE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.

MYRNA DIAZ,

Defendant-Appellant.

_________________________________

November 18, 2013

 

Argued November 7, 2013 Decideda4378-10

 

Before Judges Simonelli, Fasciale and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-08-3025.

 

John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief).

 

Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried before a jury on nine counts of a ten-count indictment,1 defendant Myrna Diaz was convicted of first-degree felony murder, N.J.S.A. 2C:11-3a(3) (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count three); two counts of fourth-degree unlawful possession of a weapon (a knife and a metal bar), N.J.S.A. 2C:39-5d (counts four and six); two counts of third-degree possession of a weapon for an unlawful purpose (a knife and a metal bar), N.J.S.A. 2C:39-4d (counts five and seven); second-degree burglary, N.J.S.A. 2C:18-2 (count eight); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count nine); and fourth-degree credit card theft, N.J.S.A. 2C:21-6c (count ten).

At sentencing, the judge merged the conviction for count four into count five, and the conviction for count six into count seven. The judge sentenced defendant to forty years in prison, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release, on count one. He imposed a concurrent twenty-year term, subject to NERA, on count three; four separate, concurrent eight-year terms on counts five, seven, eight and nine; and a concurrent eighteen-month term on count ten. Thus, defendant's aggregate sentence was forty years, subject to the eighty-five percent parole ineligibility provisions of NERA. Appropriate fines and penalties were also imposed. We affirm.

I.

The State developed the following proofs at trial. The victim, Jose Cabrera, owned and operated an auto repair shop in Newark. On October 9, 2006, his employees discovered his body lying face down in a pool of blood in the office.

One of the employees flagged down a passing patrol car and detectives from the Essex County Prosecutor's Office were assigned to investigate. The detectives saw that Cabrera had been severely beaten and that his legs and wrists were bound.

In the office, the detectives observed a safe, that had been turned upside down and pried open on the bottom.2 The detectives found a steel pry bar, a hand truck, an electric drill, an impact gun, a lug wrench, a hammer, and a circular saw inside the office. The employees reported that these items were normally kept in the shop. The detectives also recovered a knife with a broken handle from the scene. There were no signs of a forced entry, which led the detectives to believe Cabrera knew the perpetrators.

Cabrera's family reported that Cabrera always kept two cell phones with him at all times. However, the phones were not found on the premises. Further investigation revealed that one of the phones had been used to call Warner. The detectives also learned that Cabrera's credit card had been used after his death at three local stores and a gas station. Less than $1000 had been charged to the account.

A loss specialist for one of the stores supplied the detectives with a surveillance video. The video was date-stamped October 10, 2006. Defendant was seen on the video with Warner bagging groceries. The video also showed Warner swiping Cabrera's credit card at the register. However, the card was declined, and defendant and Warner then left the store.

On October 18, 2006, the detectives located defendant and asked her to come to the police station for questioning. She agreed to do so and gave a recorded statement to Detective Peter Chirico after he provided her with the standard Miranda3 warnings. Defendant denied having any knowledge about what had happened to Cabrera. The tape was played for the jury.

Detective Chirico did not arrest defendant at that point. Instead, he made arrangements for her to be transported to "wherever she was going." While waiting for her ride, however, defendant approached the detective and asked to speak to him. After again reading her the Miranda warnings, Detective Chirico took a second, recorded statement from defendant. This recording was also played for the jury.

This time, defendant stated Cabrera was her former boyfriend and that she had visited him at his shop on October 6, 2006. After she left, she saw Warner and Williams at the corner and they stopped to ask her about the shop. She knew both men and, over the past "two to three weeks[,]" she had been sexually intimate with Williams. Defendant stated Williams refused to let her leave. The men told defendant she had to accompany them to the shop.

Defendant also stated that, on Sunday, October 8, 2006, she and the two men went to the shop. Warner went in first and punched Cabrera. Warner and Williams wanted Cabrera to open the safe, but he refused. The men continued to hit Cabrera and defendant stated "they were hitting [him], they were punching and then they used a long metal piece, it looked like part of a car or a truck or something." Defendant claimed they told Cabrera, "open the safe or I'm going to slit your girlfriend's throat . . . ." Williams then told Warner to take defendant to the garage and he did so.

Defendant stated Williams began to beat Cabrera and she could hear "hitting" and "banging" as Williams tried to open the safe. Defendant claimed Warner held a knife to her throat while they were in the garage to keep her from leaving. When Williams later came into the garage, defendant saw that "his boots were bloody." Williams kept "going in and out" of the office and Warner kept watch. Defendant stated that when Williams "came out for the last time, he just said, let's go. Get up and let's go." As she left, defendant saw Cabrera lying on the floor and "there was blood, a lot of blood . . . ."

Defendant admitted that Cabrera's credit cards were taken from the office. She also admitted using one of the cards with Warner "to buy bulk food" at the grocery store.

In January 2009, defendant gave a third statement about the incident during an interview she had with Assistant Prosecutor Naazneen Khan.4 Defendant stated she drove Warner and Williams to Cabrera's shop and that she knew "a robbery was going to take place . . . ." However, she denied knowing the men intended to harm Cabrera. Defendant told Khan she remained in the car during the entire incident.

The medical examiner characterized Cabrera's death as a homicide, and testified the cause of death was from a traumatic brain injury. Cabrera suffered numerous lacerations, abrasions, and contusions on his scalp, face, shoulder, elbow, and forearm. Both of his eyes were swollen, and he had two lacerations of various sizes on or near the top of his head, two on the back of his head, and one on each side of his head. He also had multiple fractures to the right side of his skull and a fracture that extended from the top of his skull to the base of his skull.

The medical examiner stated that Cabrera had also been attacked with a serrated knife and had a superficial wound to his neck below his Adam's apple. Cabrera's left humerus, right scapula, and five of his ribs were fractured, and his left shoulder joint was dislocated. The medical examiner opined that a heavy weapon with sharp edges was used during the attack. She also observed that Cabrera's ankles were bound with electrical cord, and he had no defensive wounds to his hands.

Defendant testified on her own behalf. She stated she was having an affair with Cabrera, who provided her with financial help for her apartment. She met Williams two or three weeks before the date of the murder and began having a sexual relationship with him. Williams supplied her with drugs. Through Williams, defendant met Warner. Defendant stated she continued to see Cabrera, "but not on an intimate level."

Defendant testified she went to Cabrera's shop on October 6, 2006 for help with paperwork regarding the purchase of a truck by her nephew. On October 9, she stated she was at Warner's girlfriend's home when Williams and Warner arrived with a "grocery cart." There were a number of items in the cart, including "a black bag, it had credit cards in it." One of the cards belonged to Cabrera. Defendant said she used card twice with Warner and Williams because they threatened her and her children if she did not. She claimed she was "just a follower there, a body standing there."

Defendant testified she was "high" on drugs when she met with Detective Chirico on October 18, 2006. She stated she did not respond to the questions he asked until an officer struck her on the arm. She also claimed she was "confused" about her Miranda rights. She stated she only gave a statement to the detective because she wanted to leave.5 Defendant testified she was not present when Cabrera was beaten and killed and did not tell Williams and Warner that Cabrera had a safe.

II.

Against this record, defendant raises the following arguments:

POINT I

 

THE JUDGE FAILED TO CHARGE ANY LESSER-INCLUDED OFFENSES, DESPITE THE EVIDENCE THAT [DEFENDANT] WAS NOT PRESENT AT THE ROBBERY AND MURDER, THEREBY PRESENTING THE JURY WITH A STARK ALL-OR-NOTHING CHOICE BETWEEN FINDING HER GUILTY OF FIRST-DEGREE ROBBERY, SECOND-DEGREE BURGLARY AND FELONY MURDER, OR FINDING HER NOT GUILTY OF ANY OF THE SUBSTANTIVE CRIMES CHARGED. (Partially raised below).

 

A. The Court Improperly Denied Defense Counsel's Request for a Theft Charge as a Lesser-Included Offense of Robbery, Despite Evidence that the Charge was Warranted.

 

B. An Instruction Should Have Been Given on Attempted Theft as a Lesser-Included Offense of Robbery. (Not raised below).

 

C. Had the Jury Been Provided With Appropriate Lesser-Included Offense Instructions, the Judge would have been Required to Explain How Ms. Diaz could be Found Guilty of a Lesser-Included Offense as an Accomplice to the Co-Defendants if She did not Share their Intent to Commit the Specific Greater Offenses. (Not raised below).

 

POINT II

 

AS WAS THE BASIS FOR REVERSAL IN STATE v. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below).

 

POINT III

 

THE ACCOMPLICE LIABILITY CHARGE WAS NOT TAILORED TO THE FACTS OF THE CASE. (Not Raised Below).

 

POINT IV

 

THE PROSECUTOR SOUGHT TO INFLAME THE PASSIONS OF THE JURORS AND UNFAIRLY ATTACKED THE CHARACTER OF THE DEFENDANT IN TRIAL AND SUMMATION. (Partial Plain Error).

 

POINT V

 

THE TRIAL COURT ABUSED ITS SENTENCING DISCRETION BY IMPOSING A 40-YEAR AGGREGATE PRISON TERM WITH AN 85% PAROLE DISQUALIFIER, BECAUSE NO AGGRAVATING FACTORS WARRANTED MORE THAN A 30-YEAR PRISON TERM WITH A 30-YEAR PAROLE DISQUALIFIER FOR FELONY MURDER.

 

After reviewing the record in light of prevailing legal standards, we reject these arguments and affirm.

Defendant argues in Point I that the trial judge erred in not instructing the jury on theft as a lesser-included offense of robbery. Defendant argues that, because the jury was not given the option of finding her guilty of a lesser charge, it was presented with an improper, "all-or-nothing choice" to find her guilty of robbery or nothing at all. We disagree.

It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Id. at 287-88. The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008).

In order to charge a lesser-included offense, the judge must first find that "there is a rational basis for a verdict convicting the defendant of the included offense." State v. Cassady, 198 N.J. 165, 178 (2009) (quoting N.J.S.A. 2C:1-8(e)). The judge must consider whether the evidence at trial "presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." Ibid. (quoting State v. Brent, 137 N.J. 107, 117 (1994)). "'[S]heer speculation does not constitute a rational basis.'" Ibid. (quoting Brent, supra, 137 N.J. at 118).

Applying these principles, we conclude the judge properly determined there was no rational basis in the record to charge the jury on theft of movable property. As the judge noted, the State "did not try this case in any way, shape or form as a theft." No evidence was ever presented that anything other than the credit cards were taken from Cabrera's office and the judge provided the jury with the model charge on credit card theft. Thus, contrary to defendant's contention, the jury was not left with an "all-or-nothing choice." If it believed defendant really had no involvement in the murder and robbery, it could have found her not guilty of that charge, but guilty of credit card theft.

We reject defendant's argument that the judge should have charged theft as a lesser-included offense of robbery because the State did not prove that anything of value was taken from Cabrera's office or safe. Because defendant did not object to the judge's instruction on this ground, we review the claimed error under the plain error standard. R. 2:10-2.

In the context of a jury charge, plain error requires demonstration of "[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant 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. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

A "[d]efendant is required to challenge instructions at the time of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7 2), certif. denied, 177 N.J. 572 (2003). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35.

We discern no error, much less plain error, in the judge's failure to provide a sua sponte instruction to the jury on the offense of attempted theft. Here, the State demonstrated that Cabrera's credit card was taken, thereby satisfying the elements of a "completed" theft of a credit card. Thus, there was no rational basis in the record for charging the jury on attempted theft.

For these same reasons, the judge was not required to define the word "attempt" for the jury, as defendant contends for the first time on appeal in Point II. This term need only be defined for the jury when "there [is] no evidence of an actual theft, [and] the court [is therefore] required to instruct the jury on the law of attempt as an element of robbery." State v. Dehart, 430 N.J. Super. 108, 119 (App. Div. 2013). Because the evidence demonstrated that Cabrera's credit card was taken, this was an actual, rather than an "attempted," theft and no further instruction was necessary.

We also do not discern plain error in the instruction provided by the judge on accomplice liability. Defendant contends in Point III that the judge did not "tailor" the accomplice charge to the specific facts of this case and failed to adequately explain that the jury should consider defendant's accomplice status "separately as to each charge." We disagree.

There was no evidence, nor did the State allege, that defendant physically attacked Cabrera. The entire case against defendant was whether she, acting as an accomplice, had the purpose to promote or facilitate the armed robbery. The model jury charge the judge gave sufficiently explained this concept. There was no need for further tailoring.

While the judge read the accomplice liability portion before addressing the nine charges in the indictment, he carefully instructed the jurors on each of these separate charges. He also explained, in his discussion of the verdict sheet, that each question posed was "based upon different sections of our criminal statute. By that I mean you must decide each question separately based upon the law as I gave it to you." When read in the context of the jury charge as a whole, the judge's instructions on accomplice liability adequately apprised the jury that defendant's accomplice status needed to be considered separately as to each of the charges.

Defendant's contention that the judge should not have instructed the jury as to accomplice liability regarding the weapons offenses also lacks merit.

Whether accomplice liability even applies to a possessory weapons offense is doubtful. In such a case, the state must show that defendant possessed the weapon with a purpose to use it unlawfully. Possession may be actual or constructive and two or more persons may jointly share actual or constructive possession of a weapon. Once the jury is instructed as to these principles, which is what occurred here, the giving of an erroneous accomplice charge is, at most, harmless.

 

[State v. Cook, 300 N.J. Super. 476, 489-90 (App. Div. 1996) (citations omitted).]

 

Here, the judge carefully instructed the jury on both actual and constructive possession of the knife and metal bar. Therefore, any error in also charging the jury on accomplice liability on these charges was, "at most, harmless." Id. at 490.

Defendant next contends in Point IV that the prosecutor made improper comments about her character and attempted to "shift the burden of proof to her" during his cross-examination of her at trial. She also asserts the prosecutor made improper comments during his summation. Again, we disagree.

In determining whether prosecutorial misconduct has occurred, we are guided by well-settled principles. A prosecutor may not elicit improper or inflammatory testimony from a witness. See State v. McGuire, 419 N.J. Super. 88, 140-42 (App. Div.), certif. denied, 208 N.J.335 (2011). "The foundational principle in [the] framework [of cross-examination] is that a prosecutor must have 'reasonable grounds' for posing questions during cross-examination that impugn a witness's credibility." State v. Daniels, 182 N.J. 80, 99 (2004).

With regard to their summations, prosecutors are "expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). They "are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. Still, a prosecutor's summation "is limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000).

To warrant a reversal, the prosecutor's conduct "must have been clearly and unmistakably improper, and [it] must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation marks omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In assessing the impact of prosecutorial misconduct, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." Ibid.

We discern no error, harmless or otherwise, in the prosecutor's conduct in this case. Defendant complains the prosecutor attacked her credibility by asking her on cross-examination if she was "a liar" and asserts the prosecutor's questions about her veracity improperly shifted the burden of proof to her. However, defendant's credibility was clearly an issue in this case because defendant gave four different versions of her involvement in the robbery and murder of Cabrera. In her statements to the police, she first stated she was not involved at all. She then alleged she was present in the shop when the crimes occurred. Defendant later claimed she waited outside in the car. At trial, she stated she was only involved in using the credit card and that she only did so because she had been threatened by Williams and Warner.

Thus, defendant's credibility was clearly a proper subject for cross-examination by the prosecutor. Moreover, when defendant raised this issue, the judge gave a curative instruction to the jury "that the defense does not have to prove anything in this case. It's the State's burden to prove the charges beyond a reasonable doubt." We discern no error in the judge's ruling.

Defendant also complains the prosecutor improperly asked defendant whether she "[l]ook[ed] like a kid in the candy store" while she was bagging the groceries she attempted to purchase with Cabrera's credit card. However, the judge sustained defendant's objection to this question and the comment contained therein clearly did not prejudice defendant's right to a fair trial.

Turning to the prosecutor's summation, defendant argues the prosecutor improperly told the jury she was "lying" and "acting" during her testimony. She also asserts the prosecutor should not have concluded his summation by stating that the jury's function was "seeing that justice is done." We note that defendant did not object to any portion of the prosecutor's closing argument. Therefore, the plain error standard of review is again applicable. R. 2:10-2.

Because defendant's credibility was clearly an issue, there was nothing improper about the prosecutor attacking her credibility during summation. We also do not believe the prosecutor's request that the jury "see that justice is done" was designed to persuade the jury to ignore the facts presented in the trial testimony as defendant alleges. Rather, this remark was nothing more than a comment on the jury's ultimate fact-finding responsibility.

Finally, defendant argues in Point V that her sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500-01 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record and applied the correct sentencing guidelines enunciated in the Code. Because there is neither clear error on the judge's part in his adherence to the sentencing guidelines, nor a sentence imposed which, under the circumstances, shocks the conscience, there is no reason for appellate intervention. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989).

Affirmed.

1 Count two of the indictment, first-degree murder, N.J.S.A. 2C:11-3a(1) and (2), only pertained to defendant's two co-defendants, McDonald Williams and Mark Warner, who were charged in all ten counts of the indictment. Their cases were handled in separate proceedings.

2 The State presented the testimony of a safe technician, who qualified as an expert in safes and vaults. The expert testified Cabrera's safe weighed between 1000 and 1200 pounds and that it would require more than one person, and a dolly, to move or turn over the safe. The expert opined the perpetrators used a circular saw, an angle grinder, and an impact wrench to cut into the bottom of the safe. The safe was then pried open. The expert testified it would have taken at least two hours to move and open the safe.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 Khan was interviewing defendant in connection with an unrelated legal matter.

5 The judge denied defendant's pre-trial suppression motion and ruled that the statements defendant made to Detective Chirico were voluntary and, therefore, admissible at trial.