STATE OF NEW JERSEY v. ANGEL X. HERNANDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0494-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL X. HERNANDEZ,

Defendant-Appellant.

________________________________________________________________

February 26, 2014

 

Submitted November 5, 2012 - Decided

 

Before Judges Sabatino and Maven.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-11-1217.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

 

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

 

The opinion of the court was delivered by

MAVEN, J.A.D.

 

This direct appeal arises from a criminal trial in which defendant Angel Hernandez was convicted of a number of charges stemming from his involvement in a bar fight with Norris Grandberry on March 30, 2007. At the time of the fight, defendant was dating Grandberry's ex-girlfriend, Tequisha Evans. Evans, who was also involved in the altercation and charged as a co-defendant, pled guilty to simple assault.

Following a trial, a jury convicted defendant of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (amended count one); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (count three); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4 (count five); and unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count six).

After appropriate mergers, the judge sentenced defendant to an aggregate eight-years' custody with four years of mandatory parole ineligibility. The judge also imposed mandatory fines and penalties.

I.

The following facts were elicited at trial. On March 30, 2007, defendant and Grandberry engaged in a physical altercation in a bar. Defendant admitted to throwing the first punch because Grandberry called him a "stupid ass." Defendant testified that as he and Grandberry began fighting, he felt something hard behind Grandberry's waist which subsequently fell to the floor. Defendant claims he saw that it was a gun, picked it up, and put in the back of his pants. A video surveillance tape was also recovered from the bar, which depicted the altercation before the participants moved to the bathroom. When shown the video at trial, defendant pointed to himself picking up the gun but was not able to point out when it fell.

Evans and her twin sister Laquisha Evans (Laquisha)1 then became involved in the fight. Evans joined defendant and punched Grandberry, while Laquisha tried to break up the fight. As defendant and the Evans sisters were walking out of the bar, Grandberry picked up a chair as if to hit defendant. Defendant thought Grandberry was going to hit Laquisha with the chair, so in response, defendant pulled out the gun and pointed it at Grandberry to stop him.

Grandberry ran into the bathroom, followed by defendant and the two women. A scuffle ensued in which Grandberry claimed defendant pointed the gun into the bathroom. According to Grandberry, he grabbed the gun away from defendant, but then defendant "snatched it" back. Defendant denied pulling the gun out and pointing it at Grandberry in the bathroom. Grandberry sustained multiple head injuries during the altercation and received stitches.

Jeyakyman Aiyathurai, the bar owner, who was working that night, testified that defendant and Grandberry were "struggling" near the bathroom, and that he saw defendant hit Grandberry with the weapon. According to Aiyathurai, when the magazine fell out of the gun onto the floor, he kicked it behind the bar. The police recovered the magazine when they arrived at the bar.

Defendant and Evans left the bar before the police arrived, and went to defendant's house where he stored the gun in a lockbox. The police executed a search warrant at defendant s house where they recovered a camouflage jacket matching the one defendant was wearing at the bar, and a lockbox containing a handgun with a missing magazine. Detective Sergeant Robert Cowden of the State Police determined the magazine recovered from the bar was "consistent" with the gun recovered from defendant's house.

During the course of Grandberry's testimony, the court held a Rule 104 hearing to determine the admissibility of testimony proffered by the State regarding defendant's prior physical altercations with Grandberry. The court determined that Grandberry could testify generally with respect to the number and timeframe of the encounters.

This appeal followed, in which defendant raises the following claims:

I. THE PROSECUTOR PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY REPEATEDLY ELICITING TESTIMONY FROM THE STATE'S WITNESSES THAT REFERRED TO NORRIS GRANDBERRY AS THE "VICTIM" BECAUSE THE TESTIMONY DIMINISHED THE PRESUMPTION OF INNOCENCE (Not Raised Below).

 

II. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT THE FACT THAT TEQUISHA EVANS ENTERED A PLEA OF GUILTY TO ASSAULT CANNOT BE USED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT (Not Raised Below).

 

III. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE THE TRIAL COURT IMPROPERLY ASSISTED THE PROSECUTOR (Not Raised Below).

 

IV. THE TRIAL COURT COMMITTED HARMFUL ERROR IN ADMITTING EVIDENCE THAT DEFENDANT HAD "PHYSICAL ALTERCATIONS" WITH GRANDBERRY IN THE PAST AS PROOF OF MOTIVE UNDER N.J.R.E. 404(B).

 

V. THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY STATEMENTS MADE BY THE PROSECUTOR IN SUMMATION (Raised in Part Below and Not Raised in Part Below).

 

A. The Prosecutor Misstated the Law.

 

B. The Prosecutor Improperly Introduced the Concept of Defendant's Innocence (Not Raised Below).

 

VI. THE TRIAL COURT COMMITTED HARMFUL ERROR IN ITS JURY INSTRUCTIONS.

 

A. The Trial Court Erred in Instructing the Jury on Thi[r]d Degree Aggravated Assault as a Lesser Included Offense on Count One.

 

B. The Court Erred in Charging the Jury on Flight Because There Was No Evidence of Flight in the Case.

 

VII. THE 8 YEAR BASE CUSTODIAL SENTENCE WITH 4 YEARS OF PAROLE INELIGIBILITY IMPOSED ON THE DEFENDANT'S CONVICTION ON COUNT FIVE FOR POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE WAS MANIFESTLY EXCESSIVE, AND THE $8134.78 TOTAL VCCB PENALTY IMPOSED REPRESENTS A MISAPPLICATION OF THE COURT'S SENTENCING DISCRETION.

 

We have carefully considered defendant's arguments in light of the record and applicable legal principles, and conclude that none of the arguments have merit. Since the arguments raised in Points I, II, and III are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), we confine our discussion to Points IV through VII.

II.

We turn first to the trial judge's evidentiary rulings. Defendant contends the judge erred by permitting Grandberry to testify that defendant confronted him at least three times in the past. He argues that defendant s and Grandberry's dislike for each other was irrelevant and not a material issue in dispute. The State counters that the evidence of these prior bad acts was admissible under N.J.R.E. 404(b) to show defendant's intent and motive for assaulting Grandberry.

Our standard of review requires us to give "substantial deference to a trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We review such decisions under "an abuse of discretion standard." State v. Burns, 192 N.J. 312, 332 (2007). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982). Our review of a trial judge's purely legal conclusions, however, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In general, "[d]eterminations on the admissibility of other-crime evidence are left to the discretion of the trial court." State v. Marrero, 148 N.J.469, 483 (1997). "The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard." State v. Ramseur, 106 N.J.123, 266 (1987) (citation omitted), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).

That said, we are mindful that since "other-crime evidence is highly inflammatory, having the unique tendency to turn a jury against the defendant, trial courts are required to make a careful and pragmatic evaluation of the evidence based on the specific context in which it is offered." State v. Hernandez, 170 N.J. 106, 119 (2001) (citations and internal quotation marks omitted).

The admission of other-crime evidence is governed by N.J.R.E.404(b), which states:

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

 

In State v. Cofield, 127 N.J. 328 (1992), the Supreme Court established a four-part test to govern the admissibility of such evidence for those purposes. The Cofield tests requires that:

[1] The evidence of the other crime must be admissible as relevant to a material issue;

 

[2] It must be similar in kind and reasonably close in time to the offense charged;2

 

[3] The evidence of the other crime must be clear and convincing; and

 

[4] The probative value of the evidence must not be outweighed by its apparent prejudice.

 

[Williams, supra, 190 N.J. at 122 (citing Cofield, supra, 127 N.J. at 338).]

 

Defendant argues that evidence of his prior physical altercations with Grandberry fail prongs one and four of the Cofield test. We disagree. Upon our careful review of the record, we are satisfied that the trial judge appropriately held a Rule104 hearing, and the resulting factual findings are entitled to our deference. State v. Robinson, 200 N.J.1, 15 (2009). The judge appropriately weighed the probative and prejudicial value of the evidence and ruled that evidence of the past confrontations were "relevant to motive and intent, and it has been proved by clear and convincing evidence." The judge gave an appropriate instruction advising the jury on the limited permissible use of that evidence. SeeState v. P.S., 202 N.J.232, 240 (2010).

Defendant points to the error in the judge's statement regarding which party carried the burden of proof to determine the probative value of the evidence in relation to its prejudicial value. See State v. Long, 173 N.J. 162 (stating that the fourth prong of Cofield "requires the State to establish the probative value of the statements made by defendant . . . are not outweighed by its apparent prejudice"). The record reflects that prior to the Rule 104 hearing the judge initially stated the defendant bears the burden of showing that the prejudice outweighs the probative value. However, after hearing the testimony and legal argument the judge actually did apply the proper legal standards and properly evaluated the prejudice to defendant. The judge cautiously restricted Grandberry's testimony so as not to provide details of the prior conflicts, but permitted general testimony as to the number of incidents and the time when they occurred. Our independent review of the record discloses no abuse of discretion on these evidentiary rulings at trial, and the court s slight initial misstatement of the admissibility standard was plainly inconsequential.

III.

Next, defendant contends that the prosecutor's statements (1) questioning defendant's innocence and (2) misstating the law concerning self-defense, warrant reversal. We disagree.

The following transcript passages are relevant to our consideration of this issue. During summation the prosecutor stated:

Defense has suggested that he picked up the gun right here and put it in his pocket or held it in his hand and was walking toward[] the door. And only when he sees Mr. Grandberry picking up a chair does he, then, point the gun at him. There's an old saying, you never bring a knife to a gunfight. Well, you don't bring a chair to a gunfight either. I suggest to you that a chair is by no means deadly force or any type of force which requires or would justify a response of deadly force. [It] [s]imply is not self-defense. He is not defending himself. He cannot defend himself against a chair with a gun. He cannot defend Ms. Evans against a chair with a gun.

 

[Emphasis added.]

 

The disputed statement by the prosecutor that introduced the concept of defendant's innocence was as follows:

Now, at this point what does [Grandberry] do when he sees that gun? He hauls it. He turns around and he leaves. He doesn't wait a second. He sees that gun and he is gone. Now, this is the part where it gets very important because this is the part where any possible claim that [defendant] could have had for self-defense goes out the window because he doesn't do what an innocent person would do at that point.

 

[Emphasis added.]

 

Defendant objected at trial only with respect to the alleged misstatement on self-defense. Defendant requested the judge to correct the perceived error, either by giving an instruction before the jury charge or by specifically referring to the misstatement when the charge is being given. The judge accordingly instructed the jury on justification, use of deadly force, and self-defense, in a manner consistent with the governing law.

Defendant now argues on appeal that his right to a fair trial was unduly prejudiced when the concept of his innocence was improperly introduced into the trial during the prosecutor's summation. The State emphasizes that defendant did not object to this statement during the trial, which should lead to an inference that "the error was actually of no moment" and "indicates the defense did not believe the remarks were prejudicial at the time they were made . . . ." See State v. Engel, 249 N.J. Super. 336, 377 (App. Div. 1991) ("The failure to make a timely objection not only indicates the defense did not believe the remarks were prejudicial at the time they were made, but also deprives the judge of the opportunity to take the appropriate curative action."). See also State v. Murray, 338 N.J. Super. 80, 87-88 (App. Div.), ("Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial."), certif. denied, 169 N.J. 608 (2001).

Notwithstanding the lack of a timely objection here, the State acknowledges that the prosecutor s reference to innocence was error, but alternatively argues that any error was harmless and remedied by the judge's careful instructions to the jury:

The defendant . . . is presumed to be innocent, and unless each and every essential element of an offense charged is proved beyond a reasonable doubt, the defendant must be found not guilty of that charge.

 

The burden of proving each element . . . rests upon the [S]tate, and the burden never shifts to the defendant . . . the defendant in a criminal case has no obligation or duty to prove his innocence or offer any proof relating to his innocence . . . the prosecution must prove its case by a more than a mere preponderance of the evidence . . .

 

[I]t is your recollection of the evidence that should guide you as judges of the facts . . . summations of counsel are not evidence and must not be treated as evidence.

 

In evaluating whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The State's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, supra, 106 N.J. at 320. The Supreme Court has recognized that criminal trials often create a "'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).

Here, we are satisfied that the prosecutor's comments in summation are within the bounds of permissible commentary. With respect to the prosecutor's misstatement of the law on self-defense, the judge's subsequent jury charge on the issue was appropriate and sufficient to preserve the integrity of the trial. With respect to the prosecutor's reference to defendant's innocence, the presumption of innocence and the State s commensurate burden of proof were rightly emphasized numerous times in the judge's instructions. The prosecutor's statements were reasonably consistent with the proofs that had been adduced at trial and fairly responded to defense counsel's summation emphasizing defendant's theory of self-defense. The judge's instructions gave proper direction to the jury on the elements necessary to be proven by the State and the jury's obligation to weigh the evidence for itself. On the whole, we discern no error, much less plain error, from the prosecutor's comments.

IV.

Defendant contends that the court erred in instructing the jury on third-degree aggravated assault as a lesser included offense on count one, initially charged as a second-degree offense. The State argues that because defendant requested an instruction on the petty disorderly offense of simple assault, it cannot argue now that the jury instruction was improper.

"An essential ingredient of a fair trial is that a jury receives adequate and understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997). "Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" Ibid. (quoting State v. Alexander, 136 N.J. 563, 571 (1994)).

At a conference on the record, the judge and counsel discussed the charge for count one. The judge determined that presenting that count as a third-degree offense was proper and permitted the jury to consider degrees of culpability "from the second to the third [and even] to [a petty disorderly persons offense]," to which defense counsel responded "Yeah. I don't have a problem now."

Defendant now challenges the very instruction to which he agreed. We conclude that defendant is barred by the invited error doctrine, Rule 2:10-2, from contesting a jury instruction he consented to at trial. The situation is manifestly one of invited error. "Under that settled principle of law, trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)) (internal quotation marks omitted). "[I]f a party has 'invited' the error, he is barred from raising an objection for the first time on appeal." Ibid. (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010)).

Defendant also asserts that the judge's flight charge instruction was not supported by the evidence. We again disagree.

"A jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." State v. Mann, 132 N.J. 410, 419 (1993). "In those instances in which the trial court deems the evidence of flight admissible, it must instruct the jury carefully regarding the inferences the jury may draw from that evidence." Id. at 420. "If a defendant offers an explanation for the departure, the trial court should instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Id. at 421.

A flight charge is unwarranted "unless separate proofs are tendered to sustain the claim that the defendant's absence was designed to avoid detection, arrest, or the imposition of punishment." State v. Ingram, 196 N.J. 23, 47 (2008). As the Court explained in State v. Sullivan, 43 N.J. 209 (1964), "[f]or departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Id. at 238-39.

Here, the State offered evidence that defendant departed from the bar with the gun he asserted did not belong to him. Defendant admitted he did not report the gun to police, that he stored it in a lockbox, and did not turn it over to police until they executed a search warrant. These "separate proofs" sustain the claim that the defendant's absence was designed to avoid detection, arrest, or the imposition of punishment. We conclude this evidence can support an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.

V.

Finally, defendant contends that his sentence is excessive, arguing the court failed to place on the record a qualitative analysis of its reasons why the aggravating factors merited the imposition of a sentence greater than the Graves Act minimum, as recommended by the State. Further, defendant argues the court failed to take into consideration defendant's ability to pay and the impact of the penalty on his dependents, as required by N.J.S.A. 2C:43-3.1(a)(1).

In State v. Bieniek, 200 N.J. 601, 608 (2010), our Supreme Court noted that the role of an appellate court is not to substitute its judgment about appropriate sentencing factors for that of the sentencing judge. When the sentencing court adheres to the "sentencing principles set forth in the Code and defined in our case law, its discretion [is] immune from second-guessing." Id. at 612.

The judge found applicable aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another crime; aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record; and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. The judge found no mitigating factors applicable under N.J.S.A. 2C:44-1(b). In analyzing aggravating factor nine, the judge referenced the "accumulation of acts that occurred in that bar," which included initiating a violent fight and later pointing a gun in a crowded bar, as support for the need to deter defendant and others. Additionally, the judge supported his finding of aggravating factors three and six by noting the defendant's prior record, and specifically the fact that it included other instances of "assaultive behavior."

We find no abuse of discretion in the judge's findings with respect to aggravating and mitigating factors. See Bieniek, supra, 200 N.J. at 610-11. We are equally satisfied the judge fully explained why he exceeded the statutory minimums, as well as why he rejected the State's recommendation in imposing the eight-year sentence. See State v. Roth, 95 N.J. 334, 364-66 (1984). The sentence imposed is well-supported by the record and we discern no basis to disturb this sentence on appeal.

With respect to the VCCB penalty of $8,134.78, defendant argues that the court failed to take into consideration defendant's ability to pay and the impact of the penalty on his dependents. N.J.S.A. 2C:43-3.1(a)(1) states that "[i]n imposing [the] assessment, the court shall consider factors such as the severity of the crime, the defendant's criminal record, defendant's ability to pay and the economic impact of the assessment on the defendant's dependents."

In the judge's sentencing statement there is no indication he considered the requisite statutory factors. Rather, the judge noted only the severity of the crime and defendant's prior record. A trial court must make findings and state reasons on the record before imposing a fine. State v. Ferguson, 273 N.J. Super. 486, 499 (App. Div.), certif. denied, 138 N.J. 265 (1994). Because the court did not make the requisite findings, we remand to the trial court to conduct a hearing as to defendant's ability to pay. State v. Gallagher, 286 N.J. Super. 1, 23 (App. Div.), certif. denied, 146 N.J. 56 (1996).

Affirmed in part, remanded in part. We do not retain jurisdiction.

 

 

1 In order to avoid confusion with her sister, we will use Laquisha's first name.

2 The requirement for the second Cofield prong is not found in the language of Evidence Rule 404(b). As such, this factor is "'limited to cases that replicate the circumstances in Cofield.'" State v. Rose, 206 N.J. 141, 160 (2011) (quoting State v. Williams, 190 N.J. 114, 131 (2007)).