STATE OF NEW JERSEY v. JUAN A. GUADALUPE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3333-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN A. GUADALUPE,

Defendant-Appellant.

________________________________________________________

October 3, 2014

Submitted September 9, 2014 Decided

Before Judges Accurso and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 77-09-00009.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Juan Guadalupe, appeals from his conviction by a jury for kidnapping, N.J.S.A. 2A:118-1 and conspiracy to commit rape, N.J.S.A. 2A:98-1. Defendant was acquitted on other charges. Defendant was sentenced to thirty years in prison for the kidnapping. Defendant was sentenced to a concurrent three-year term for the conspiracy to commit rape. We affirm.

On August 7, 1977, a 19-year-old, S.M., was riding her bicycle on a remote roadway in Alloway Township, Salem County, when she was abducted by two men in a car. The men forced S.M. into the car at knifepoint and took her to a peach orchard where they sexually assaulted her. Subsequent to the assault she asked her assailants to return her to her bike. Upon realizing that the route taken was not to that location, she escaped from the car and ran to a nearby home where she notified the police.

S.M. provided law enforcement with a description of her assailants and the car, including its license plate number. Several hours later the police stopped a car matching the description near a farm camp in Carneys Point Township.1 The two occupants of the vehicle, including the co-defendant, William Ortega, were arrested. Defendant was not in the car. S.M. identified Ortega as one of her assailants while indicating that the other occupant was not involved in the assault. S.M. led police to the peach orchard where she was assaulted and they recovered evidence at the scene.

From information obtained during the course of the investigation, defendant was identified as a suspect. However, despite efforts by law enforcement, he was not found. A warrant was issued for his arrest.

On March 9, 2011, a detective with the Warrants and Extradition Division of the Puerto Rican Police Department came into contact with defendant. According to the detective, defendant was stopped for a traffic offense. Upon inputting defendant's information into the computer, it was learned that defendant had an outstanding warrant from the State of New Jersey. Defendant was arrested. The detective was later able to confirm that defendant was the "Juan A. Guadalupe" sought by the State of New Jersey. The detective obtained a statement from defendant wherein he admitted that he was aware of an outstanding warrant for his arrest. Defendant also admitted that he and a fellow co-worker abducted a female who he believed worked with them. In his statement, defendant denied engaging in any sexual activity with the woman, but did acknowledge that, knowing that law enforcement was looking for him, he fled to Connecticut to work in a tobacco factory.

On appeal, defendant raises the following arguments

POINT I

THE COURT'S INSTRUCTION ON TITLE 2A KIDNAPPING WAS THE FUNCTIONAL EQUIVALENT OF A DIRECTED VERDICT ON AN ESSENTIAL ELEMENT OF THE OFFENSE, VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHTS TO HAVE EVERY ELEMENT OF THE OFFENSE FOUND BY A JURY BEYOND A REASONABLE DOUBT (NOT RAISED BELOW).

POINT II

THE COURT GAVE THE JURY AN INCOMPLETE FLIGHT CHARGE, OMITTING DEFENDANT'S EXPLANATION FOR LEAVING NEW JERSEY, WHICH WAS INCONSISTENT WITH AN INFERENCE OF CONSCIOUSNESS OF GUILT (NOT RAISED BELOW).

POINT III

TWO INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL (PARTIALLY RAISED BELOW).

As a preliminary matter, defendant's arguments, with the exception of the prosecutorial misconduct issue, are subject to the plain error standard of review because they were not raised during defendant's trial or in pretrial proceedings. See R. 2:10-2. Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result," that is, if it was "'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. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that a plain error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled in part on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006). Because defendant did not contemporaneously object to those issues he now raises on appeal, he must demonstrate plain error to justify reversal of his conviction. A defendant's failure to object leads to the reasonable inference that the issue was not significant in the context of the trial. Macon, supra, 57 N.J. at 333. As we stated in Macon, "to rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage." Id.

We first address defendant's argument that there was error in the jury charge. When an appellant raises error in the jury charge, the charge must be read as a whole; the court will not read just the portion alleged as error. State v. Wilbely, 63 N.J. 420, 422 (1973). All that is necessary is that the entire charge be accurate. State v. Thompson, 59 N.J. 396, 411 (1971). Because defendant failed to object to the charge, a showing of plain error must be made when the defendant claims error on appeal. R. 1:7-2; R. 2:10-2. In considering a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Hock, 54 N.J. 526 (1969) (citation omitted), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). However, errors impacting directly on the court's obligation "to assure the jury's impartial deliberations upon the guilt of a criminal defendant based solely upon the evidence in accordance with proper and adequate instructions . . . are poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191 (1979).

Defendant urges that the judge plainly erred because the charge on kidnapping directed the jury to ignore an essential element of the offense, i.e., that the kidnapping was not done "under lawful authority." Defendant argues that by omitting this element from consideration by the jury, it violated his constitutional right to have every element determined by the jury beyond a reasonable doubt.

Pursuant to N.J.S.A. 2A:118-1 (repealed by L. 1978, c. 95, 2C:98-2, eff. Sept. 1, 1979) a person commits the crime of kidnapping who

kidnaps or steals or forcibly takes away a man, woman or child, and sends or carries . . . such man, woman or child to any other point within this state . . . .

Defendant argues that case law interpreting the statute requires proof of a taking "without lawful authority." State v. Gibbs, 79 N.J. Super. 315, 324 (App. Div. 1963).

In essential part, the court instructed the jury

Now the next crime is kidnapping. The indictment, which I've read to you, charges the defendant with the crime of kidnapping. This charge is based upon a New Jersey Statute 2A:118-1, which provides in pertinent part as follows. Any person who kidnaps or steals or forcibly takes away a man, woman or child and sends or carries such man, woman or child to any other point within the state is guilty of a crime.

In order to establish the guilt of the accused, Juan Guadalupe, under this indictment, it is necessary that the State prove beyond a reasonable doubt each of the following elements of the offense.

(1) that the accused Juan Guadalupe, did kidnap or steal or forcibly take away the victim, [S.M.], from one point within the state to another point within the state; [(2)] that such action as done by the defendant without lawful authority and (3) that such action was done by the defendant willfully or maliciously.

The term kidnap or steal or forcibly take away all convey a similar meaning. The action condemned by the statute is kidnapping which may be defined as the taking away of a person forcibly, from one point to another point without lawful authority. It is the fact or the existence of a forcible removal which constitutes kidnapping and the crimes occurrence does not depend on the distance that the victim is taken. In other words, the sending, carrying or transporting of the victim to a specific destination is not essential to the offense, as long as the taking of the victim was forcible.

When we speak of forcible, we mean against one's will. So that if a person is taken anywhere against her will, the taking away maybe said to be forcible.

In this case, there is no contention nor any evidence to support a contention that the claimed kidnapping or stealing or forcible taking away of the victim was under lawful authority, so you need not concern yourselves with that element.

Defendant argues that the judge thus failed to permit the jury to determine an essential element of the kidnapping offense. We disagree.

The judge gave a thorough charge to the jury as to the elements of the offense. Further, the jury charge was legally correct and was appropriately tailored to address the clear and unequivocal evidence, or lack thereof, adduced during the trial. There is no proof in the record that would support a finding that the "taking away" of the victim, S.M., was under lawful authority.

We recognize that proper jury charges are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). The judge must give a "plain and clear exposition of the issues." Id. at 288. When reading the charge under scrutiny to the extent that the court "directed" the jurors how they were to determine an element of the crime, the "direction" was in accord with the undisputed trial record. Moreover, to the extent that the charge was in error, we are not convinced under our standard of review, that it was "clearly capable of producing an unjust result." R. 2:10-2.

We next address defendant's claim of error in the jury charge relating to flight. Again since there was no objection to the charge, we review under the plain error standard. Defendant argues that it was error to omit the portion of the model charge that was intended to place defendant's explanation for his departure before the jury as it "undermined the defense and exacerbated the danger of prejudice" to defendant. This error, according to defendant, was clearly capable of producing an unjust result. Although not expressly argued in defendant's brief, we also consider whether the flight charge should have been given.

We note first that the flight charge is a "discretionary ruling." State v. Long, 199 N.J. 439 (1990). Proof of defendant's flight from the scene of a crime is admissible for its probative value. "Evidence of conduct of an accused subsequent to the offense charged is admissible only if probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993). Specifically, "[e]vidence of flight or escape from custody by an accused generally is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt." Ibid.

In Mann, the Supreme Court held, "[i]n 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," and that, "[a]n adequate jury instruction would require the jury first to find that there was a departure, and then to find a motive for the departure, such as an attempt to avoid arrest or prosecution, that would turn the departure into flight." Id. at 420-21.

Here, we conclude that the judge correctly charged the jury. There was evidence of flight. The judge was obliged to charge flight because such an inference was factually based on the evidence. State v. Powell, 84 N.J. 305, 318 (1980).

As noted above, we consider jury instructions on the whole and not each part in isolation. We review the judge's entire charge on flight. State v. Adams, 194 N.J. 186, 207 (2008). At the request of the State, the judge gave the following charge

There has been some testimony [in] the case from which you may infer that the defendant fled shortly after the alleged commission of the crime. The defendant denies that the acts constituted flight. The question of whether the defendant fled after the commission of the crime is another question of fact for your determination. Mere departure from a place where a crime has been committed does not constitute flight. If you find that the defendant fearing that an accusation or arrest would be made against him on the charge involved in this indictment took refuge in flight for the purpose of evading the accusation or arrest on that charge, then you may consider such flight in connection with all other evidence in the case as an indication or proof of consciousness of guilt. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offenses charged in the indictment.

As a general matter, flight may be admitted "as evidence of consciousness of guilt, and therefore of guilt." State v. Ingram, 196 N.J. 23, 46 (2008). However, "mere departure from the scene of the crime does not itself constitute flight." State v. Wilson, 57 N.J. 39, 48 (1970). Not every instance in which an accused departs from a crime scene or supposed crime scene "warrant[s] an inference of guilt." State v. Sullivan, 43 N.J. 209, 238 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966). For 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." Ingram, supra, 196 N.J. at 46; Mann, supra, 132 N.J. at 421; Sullivan, supra, 43 N.J. at 238-39. Accordingly, an adequate jury instruction on flight would require the jury to find not only a departure, but also "a motive for the departure, such as an attempt to avoid arrest or prosecution, that would turn the departure into flight." Mann, supra, 132 N.J. at 421. Here, the record supported a finding that there was both a departure and a motive for the departure that warranted the judge's charge. The record also fully supported a finding that defendant's departure was not "mere departure." The charge was entirely consistent with the legal principles we have described. Defendant argues that the flight charge should have described for the jury an alternative explanation for his departure. Without question there may be reasons why an innocent person might leave a crime scene or supposed crime scene, and the Supreme Court of the United States has "consistently doubted the probative value" of flight alone as evidence of consciousness of guilt. Wong Sun v. United States, 371 U.S. 471, 483 n.10, 83 S. Ct. 407, 415 n.10, 9 L. Ed. 2d 441, 452 n.10 (1963).2 It would be appropriate for a judge to advise a jury of an alternative explanation for an accused's departure from the scene if the evidence supported it or if defendant requests it. Mann, supra, 132 N.J. at 421 (holding that "[i]f a defendant offers an explanation for departure, the trial court should instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of defendant's consciousness of guilt from the defendant's departure").

Defendant argues that the evidence inferentially supported a finding that he left because he lost his job. There was limited testimony elicited from Detective Miller, a State's witness, that defendant was asked to leave his employment at the farm. The context of the testimony was an explanation of what occurred when Miller went to the farm looking for defendant. In his counsel's summation, he noted that "it made sense for [defendant] not to be in the area" since he was "fired." However, counsel did not juxtapose defendant's departure as an "innocent" explanation of flight. When considered with the failure to object to the judge's instructions on flight, as well as the compelling evidence of defendant's admission that he departed the area because he knew the police were looking for him, we find the charge was not clearly capable of producing an unjust result. We do not find error, nonetheless plain error, in the court's determination that the evidence did not support the instruction. State v. Nero, 195 N.J. 397, 407 (2008); Hock, supra, 54 N.J. at 538.

Defendant challenges comments in the prosecutor's opening and closing. This issue was partially raised in the trial court. In assessing whether a prosecutor's alleged misconduct requires reversal, we consider that they "'are afforded considerable leeway in making opening statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009). A prosecutor is "entitled to argue the merits of the State's case 'graphically and forcefully.'" State v. Smith, 212 N.J. 365, 403 (2012) (citations omitted), cert. denied, ___ U.S. ____, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). For prosecutorial comments "[t]o justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper," and "so egregious as to deprive defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007) (quotation marks omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

In his opening, the prosecutor made reference to "lost evidence."

Now, during the voir dire during jury selection, I heard that some of you like to watch SCI, NCIS, Cold Case. I wish I could show you some forensic evidence. You're not going to have any forensic evidence in this case. Unfortunately, this is real life and not a TV show, and the evidence that was collected over 34 years ago has been lost to the State.

After objection by defense counsel, the court ruled that the reference was accurate and not "far afield." Further, to the extent the remarks were improper, the judge, at the request of defendant's counsel, gave a curative charge to the jury prior to summation. Additionally, defense counsel made effective utilization of the "lost evidence" by addressing it during cross-examination as well as in his closing. Given the record, we do not find that the prosecutor's comments in his opening were either clearly and unmistakably improper or so egregious as to deprive defendant of a fair trial. Wakefield, supra, 190 N.J. at 437-38.

Lastly, defendant challenges comments in the prosecutor's summation. Defendant did not object to these comments.3 Thus, "defendant must demonstrate plain error to prevail." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Id. at 576.

During summation the prosecutor commented on defendant's statement that the victim was someone he thought he knew

Well, he said that he kidnapped a girl he worked with. Maybe he thought she was a girl he worked with, but what he thought or who she was, who he thought she was, is irrelevant. It's irrelevant.

He also told Detective Burgado he drank and took drugs on that day. He was high and drunk when he did this to her. So maybe he thought she looked like somebody he worked with. But that doesn't change the fact that he admitted to grabbing this girl and pulling her into the car. So what if he thought she was a girl he worked with, who cares? It's not relevant unless, of course, he's talking about another girl he kidnapped and his friend raped back in 1977 in Salem County that I don't know about.

The defendant's statement was in evidence and subject to "fair comment." Nonetheless, we view the prosecutor's comment to be ill-chosen and straddling the boundary between fair and improper comment. However, when considered with the leeway afforded to prosecutors in closing arguments as well as the instruction to the jury that the comments of the attorneys were not evidence, we are satisfied that the prosecutor's comment was not "so egregious that it deprived . . . defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).

Affirmed.

1 Both defendant and Ortega were employed at the farm camp at the time of the incident.

2 Wong Sun observed that at least as far back as Alberty v. United States, 162 U.S. 499, 511, 16 S. Ct. 864, 868, 40 L. Ed. 1051, 1056 (1896), the Court had rejected as "an accepted axiom of criminal law that 'the wicked flee when no man pursueth, but the righteous are as bold as a lion.'" 371 U.S. at 483 n.10, 83 S. Ct. at 415 n.10, 9 L. Ed. 2d at 453 n.10.

3 Defendant's counsel noted there was a "late objection" interposed in the post-verdict motion for a new trial. We do not consider this belated objection to alter our standard of review from the "plain error" rule. In failing to timely object to the alleged improper comments, it precluded the court from ruling on the objection and, to the extent required, providing a curative instruction. Notwithstanding, we note that the "plain error" rule is essentially identical to the "harmful error" rule, i.e., "clearly capable of producing an unjust result." R. 2:10-2.