STATE OF NEW JERSEY v. RODOLFO GODINEZ

NOT FOR PUBLICATION WITHOUT THE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.

RODOLFO GODINEZ a/k/a

RODOLFO GODIEZ AND

RODOLFO GOMEZ,

Defendant-Appellant.

_______________________________

April 2, 2014

 

 

Before Judges Sapp-Peterson, Lihotz, and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-09-2688.

 

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Frank J. Ducoat, Deputy Attorney General, on the brief).

 

PER CURIAM

Tried by a jury, defendant Rodolfo Godinez was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1; four counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3a(1) and -3a(2); three counts of first-degree purposeful and/or knowing murder, N.J.S.A. 2C:11-3a(1) and 3a(2); first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3a(1) and -3a(2); third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b; second-degree possession of a weapon, a handgun, for an unlawful purpose, N.J.S.A. 2C:39-4a; fourth-degree unlawful possession of a weapon, a machete, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon, a machete, for an unlawful purpose, N.J.S.A. 2C:39-4d.

The charges stem from an August 4, 2007 gang attack upon four young adults by defendant, his half-brother Alexander Alfaro, his cousin Gerardo Gomez, Shahid Baskerville, Jose Carranza, and Melvin Jovel. The victims were robbed, beaten, sexually assaulted and/or slashed. Three victims died from gunshot wounds and the fourth victim survived. She related the events surrounding the attack, as the State's principal witness.

On appeal, defendant maintains various evidentiary errors and flawed jury instructions require a new trial. Alternatively, he contends the sentence imposed was excessive. More specifically, defendant argues:

 

POINT 1

The trial court erred in refusing to suppress defendant's statements to police on Miranda and Fifth Amendment grounds.

 

POINT 2

The trial court erred in permitting before the jury evidence about defendant's alleged gang affiliation and expert testimony from the State about the MS-13 gang.

 

POINT 3

Improper comment by the prosecutor caused an unfair trial.

 

POINT 4

Defendant's right to confront a State witness was infringed, depriving defendant of a fair trial.

 

POINT 5

Inflammatory and prejudicial media exposure and continued publicity during trial infected the fairness of the trial and the impartiality of the jurors.

 

POINT 6

The trial court erred in denying defendant's motion for a new trial.

 

POINT 7

Defendant's sentence is improper and excessive.

 

We have reviewed the arguments presented in light of the record and applicable law. We find no abuse of discretion or error, and affirm.

I.

These facts, taken from the trial record, provide an overview of the events resulting in the charges against defendant and his codefendants. In our discussion which follows, we will relate supplementary information, as necessary, to add context to the issues raised on appeal.

On the evening of August 4, 2007, N.A., age nineteen, her brother Terrance Aeriel, age eighteen, along with Dashon Harvey, and Iofemi Hightower, both age twenty, spent the evening together. N.A., Aeriel and Harvey attended Delaware State University (DSU), and were members of DSU's marching band;1 Hightower had also applied to DSU and anticipated receiving a band scholarship and commencing her studies in the fall.

The group left Vailsburg Park at closing and N.A. drove the group to the Mt. Vernon School playground. She parked in the schoolyard under a streetlight, near a set of stairs. When she exited her car, N.A. noticed two Hispanic men later identified as defendant and Jovel, wearing white t-shirts and jeans, sitting on the bleachers. The two were talking and one was drinking a beer.

As N.A. and her friends were "minding [their own] business," one of the men offered her a beer, which she declined. N.A., Harvey and Hightower were sitting on the steps and Harvey began dancing. The men smiled and laughed at him. Throughout the evening, Aeriel went from the area near the steps to the monkey bars, approximately fifty feet away, as he talked on his cell phone. In doing so, he passed in front of defendant and Jovel on the bleachers.

After thirty minutes, Aeriel, who "was standing on top of the monkey bars," texted N.A.: "It's time to go." N.A. looked toward Aeriel and saw that four additional young males had entered the school parking lot. She described three of the men, later identified as Alfaro, Gomez, and Carranza, as "Spanish," wearing white t-shirts; the fourth, later identified as Baskerville, she described as African American, wearing sunglasses and a gray tank top. N.A. texted her brother, asking why they had to leave, but Aeriel was already walking toward the car at "a fast pace" with a "real serious" look on his face. As Aeriel walked, the four newcomers were behind him. Aeriel continued toward N.A.'s car and the four men veered toward the bleachers. N.A. saw defendant and Jovel stand as the four approached and the group talked amongst themselves. Convinced her brother was "uncomfortable," N.A. told the others it was time to leave and asked Aeriel to drive.

The six men were members of the Mara Salvatrucha gang, commonly known as MS-13. At defendant's direction, the gang rushed toward the four friends as they opened the doors to their vehicle. The assailants told the four victims "to get the fuck on the ground," then repeatedly ordered them to surrender their possessions. The assailants circled the car, as Aeriel and Harvey laid face down on one side of the vehicle, N.A. and Hightower laid face down on the other. The attackers yelled, "don't hold nothing back," and made threats to kill anyone who did not cooperate. The four friends complied with the demands.

N.A. observed two assailants held handguns. Other evidence revealed Jovel had a .357 magnum Colt revolver, Gomez had an inoperable .32 caliber revolver, Alfaro wielded a machete, and Carranza had a twelve-inch kitchen knife.

The gang emptied the victims' pockets, taking money, identification, credit cards, valuables, and cell phones. N.A. told them her purse was in the car, which they retrieved, and then ripped her gold chain from her neck.

Baskerville and another assailant unsuccessfully attempted to remove Hightower's pants. The two then turned to N.A., pulling down her basketball shorts. Baskerville and one of the others began digitally penetrating N.A., who repeatedly yelled "Jesus." She was told to "shut the fuck up" and did not resist during the sexual assault stating she feared for her life.

N.A. looked under the car and saw Aeriel and Harvey stand up and walk toward the nearby steps. She next recalled an attacker put his "knee in [her] back, pulled [her] hair up, and was trying to chop [her] neck off with a machete." N.A. fought back, yelled "[d]on't do that, like get off me[,]" and she stood up. At that point, she did not see Hightower. She then heard two gunshots from the stairwell. N.A. moved toward the steps and was shot in the head, the bullet striking behind her left ear. N.A. fell to the ground and eventually passed out.

That evening, Michael Yancey, who lived on the second-floor of a two story house located in front of the Mt. Vernon school, was awakened at 11:20 p.m. While in his bathroom, he heard the cries of a young woman coming from the schoolyard, begging for mercy, stating, "[d]on't do that" and "[p]lease, why you want to do that?" Yancey initially thought it was his neighbor arguing with his girlfriend. Then, the woman's voice grew angry and her tone "harsh." "A couple of minutes later," he heard four successive gunshots. He ran to his daughter's bedroom to better view the schoolyard, and saw a group of five or six men, wearing blue jeans with white t-shirts, pass by the window as they ran from the scene. Yancey described one of the men as African-American and characterized the others as "Indian or Mexican." Yancey called 9-1-1.

At 11:40 p.m., Newark Police officers were dispatched to the Mt. Vernon School. They found Aeriel, Harvey, and Hightower dead and N.A. seriously wounded lying in a pool of blood, conscious, but unresponsive. Autopsies determined Hightower died from a gunshot wound to the neck and "sharp-force" injuries to the face, head, and upper extremities; Aeriel died from a gunshot wound to the neck; and Harvey died from a gunshot wound to the head.

On August 5, 2007, between midnight and 1:00 a.m., the two lead detectives, Kevin Green of the Essex County Prosecutor's homicide squad and Lydell James of the Newark Police Department's homicide unit, arrived on scene. Police processed the schoolyard and gathered available forensic evidence. Detective Green later obtained communication data warrants for the victims' cell phones. Harvey's phone was found active and police used the phone's GPS to track it to a residence adjacent to the school. A police tracking dog later followed a scent to an area in the vicinity of what was later determined to be defendant's residence.

As the police investigation continued, they received a tip that led to the discovery of a machete in another area of the schoolyard. The .357 magnum Colt revolver used to shoot the four victims was also found in Alvarado Lobo Delgado's residence in Suffolk County, New York.

Gomez, who was then fifteen year old, was the first arrested. Carranza, then twenty-eight, turned himself in the following day. Later, Baskerville, then also fifteen, and Jovel were arrested.

Detectives Green and James learned defendant and Alfaro, then sixteen, had fled to Maryland and Virginia respectively. Detective Green apprehended Alfaro in Woodbridge, Virginia and Detective James, joined by members of the United States Marshals' Task Force, located defendant in a Maryland apartment.

Prior to trial, defendant moved to suppress custodial statements he made to police following his arrest. Defendant also sought to exclude references to his alleged gang membership. Defendant's motions were denied, based on the State's evidence, as presented in separate evidentiary hearings.

Defendant was the first of the six men tried. Following the completion of extensive jury selection, Judge Michael L. Ravin presided over the trial that began on April 27, 2010, and concluded when the jury rendered its guilty verdicts on May 24, 2010. Defendant moved for a new trial, which was denied. Thereafter, the sentence imposed included three consecutive life terms for the three murders and a consecutive twenty-year term for attempted murder. This appeal ensued.

 

II.

A.

Defendant first argues the judge erred in denying his motion to suppress his custodial statements. The challenge separately attacks defendant's statements made at the time of arrest, which he claims were elicited prior to informing him of his Miranda2 rights and his video recorded custodial statement as involuntarily. We provide the factual context surrounding these claims.

During the motion hearing, Detective James testified the Newark police received a tip regarding defendant's exact location in Maryland. The caller stated defendant was planning to leave for Texas soon. Working in conjunction with local law enforcement agencies, Detective James traveled to Maryland with a warrant to arrest defendant. When police entered the apartment, they found several men. As police searched room-to-room, they initially did not notice defendant. When asked, defendant gave a false name. Detective James confirmed defendant's identity using a photograph, placed him on the ground, handcuffed his hands behind him and advised he was being charged with the murders at the Mount Vernon school. As he was escorted to a patrol car, defendant stated: "How did you find me? Someone must have told on me." Defendant also expressed concern for his family's safety, suggesting since he had been arrested one of his "homies" might harm his mother or Alfaro. Detective James maintains he did not question defendant and advised defendant of his Miranda rights, which he acknowledged he understood. Defendant did not request an attorney.

Detective James accompanied defendant on the approximately thirty to forty-five-minute car ride to the Prince George's County Jail. In the car, defendant again expressed concern for his family. Detective James understood the gang implications of the crimes and took defendant's safety concerns seriously. He relayed defendant's comments to the Newark Police Department, which dispatched officers to defendant's residence. Defendant's mother testified the police came to her home and transported her to Maryland.

Detective James arrived at the jail in the early morning hours of August 18, 2007. He maintained defendant was not questioned while in the apartment or en route to the jail. There was no "pre-interview"; questioning commenced at 3:30 a.m., and ended at 4:20 a.m. Defendant provided a formal video recorded statement, which was also transcribed.

The tape begins with police informing defendant why he was being questioned and reciting his Miranda rights. When asked, defendant stated he could not read English, so Detective James read the Miranda form, stopping after each paragraph to ask defendant to add his initials. Finally, defendant was instructed to execute the form on the last page. Defendant acknowledged he understood his rights and agreed to speak with police. He confirmed he had not been threatened by the police but spoke with them voluntarily.

According to Detective James, defendant did not appear to be under the influence of any intoxicants. Further, he spoke exclusively in English, and displayed no difficulty communicating; there was no evidence of a language barrier. Police did not exert pressure, make threats or use force to induce the statement.

At trial, defendant testified through an interpreter. He did not refute the accuracy of his videotaped statement, but suggested it was not the whole story.

Defendant asserted he had consumed between twenty and twenty-four beers and had used cocaine prior to his arrest. He stated while in the apartment, an officer slapped him in the face after he denied his true identify. The officer then yelled at him asking: "Why did you kill those people?" Defendant responded he was innocent and had not killed anyone. Defendant further asserted three detectives took him to a bedroom and repeatedly questioned him about his half-brother's whereabouts. According to defendant, the inquiry continued while police escorted defendant to the vehicle and on the ride to the jail. Also, defendant claimed on the drive to the jail police stopped for something to drink, but did not offer him anything to eat or drink, even though he had not eaten in a day.

Once at the police station, defendant stated he was interrogated for fifteen or twenty minutes before Miranda rights were administered. Also, although he spoke English, having lived in the United States for nineteen years and completed the tenth grade, he maintained he could not read the document he was told to initial and sign, and did not understand what was read to him. He further explained "I can't understand many things," including the law.

Defendant also presented testimony from Joel E. Morgan, Ph.D., an expert in neuropsychology, who evaluated defendant, extensively testing his "mental status, his intellect, [and] his cognitive abilities, with particular focus on his ability to comprehend the Miranda rights." Dr. Morgan used the service of a Spanish interpreter because, in his opinion, defendant's language skills "seemed somewhat limited," as Spanish was his first language and the language used in his home. Based upon his examination, review of records, and the results of testing, Dr. Morgan opined "[defendant] missed the essential gist of the Miranda [rights] in that he didn't knowingly and willingly and intelligently waive his rights[.]" In Dr. Morgan's view, defendant's "limitations in vocabulary and comprehension" made him "unable to comprehend a number of the words in the Miranda statement which are below his level of comprehension." Further, had defendant been under the influence of drugs or alcohol at the time of his interview, his cognitive abilities would have been increasingly inhibited. Dr. Morgan admitted, however, he did not listen to the videotape, relying solely on the transcribed statement.

The State presented a rebuttal expert, Earnest Perdomo, Ph.D., who was fluent in Spanish. Dr. Perdomo conducted his interview and testing of defendant primarily in English, using tests geared toward individuals for whom English is a second language. Further, he reviewed defendant's school and police records, read defendant's statement to the police and listened to the videotape. Dr. Perdomo confirmed defendant suffered from a learning disability and fell in the low-average range of intellectual functioning. However, he found defendant had no trouble understanding police and did not seem intoxicated during the interview. Dr. Perdomo opined defendant had the ability to understand the Miranda rights when orally administered, finding the words used were not complicated, and defendant had familiarity with his rights as set forth in custodial statements from prior arrests.

In a written opinion, Judge Ravin made detailed factual findings, which included very specific credibility determinations. He fully evaluated the totality of the evidence, and rejected defendant's recitation of events including claims he was questioned before being advised of his rights; his prior alcohol and cocaine consumption incapacitated his comprehension; his intellectual functioning prevented his understanding of his rights; and the assertion that Detective James promised he would keep defendant's family safe in exchange for his statement.

The judge found defendant's testimony "patently unreasonable," "inherently unreliable, utterly self-contradictory, and unquestionably motivated by self-interest." In his review, Judge Ravin found the State had proven beyond a reasonable doubt police Mirandized defendant when arrested and did not engage in direct questioning or its functional equivalent until he provided the recorded statement. The judge determined once at the station, Miranda rights were reissued, so defendant was properly informed of his rights before he provided his custodial statement. In reaching this conclusion, Judge Ravin credited Detective James's observation defendant was not under the influence of intoxicants along with his independent assessment of defendant, after he reviewed the video tape. The judge credited Dr. Perdomo's testimony, finding it convincing and consistent with other evidence and noted he considered the videotape evidence. Although accepting Dr. Morgan's test results, Judge Ravin rejected his conclusion that defendant was unable to understand his Miranda rights, primarily because Dr. Morgan did not view defendant's videotaped interview or support his testimony with other evidence. See State v. Carpenter, 268 N.J. Super. 378, 383-86 (App. Div. 1993) (holding a court is not obligated to accept the opinion of a defense expert when contrary evidence, presented by the State's expert, was found credible), certif. denied, 135 N.J. 467 (1994).

Based on these findings, Judge Ravin concluded defendant's custodial statements were admissible at trial because they were knowingly and voluntarily rendered after waiving his rights. See State v. A.G.D., 178 N.J. 56, 67 (2003) (holding the State must prove beyond a reasonable doubt the defendant waived the right against self-incrimination and that his decision to do so was knowing, intelligent, and voluntary in light of all circumstances); see also State v. Presha, 163 N.J. 304, 313 (2000).

"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J.224, 243 (2007) (quoting State v. Locurto, 157 N.J.463, 474 (1999)). See alsoState v. Yohnnson, 204 N.J. 43, 62 (2010). A trial judge's "credibility findings are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." Locurto, supra, 157 N.J. at 474. Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial . . . court." State v. Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

Deferring to the factual findings and credibility determinations, which are well-grounded in the evidence in the record, we decline to disturb the order denying defendant's suppression motion for substantially the reasons set forth in Judge Ravin's written opinion. R. 2:11-3(e)(2).

 

B.

Defendant next challenges as error Judge Ravin's admission of evidence referencing his membership and status in MS-13. Gang references were made in defendant's custodial statement as he alternatively suggested the shootings were a test for a new gang member or designed as retribution because he, incorrectly, believed Aeriel belonged to a rival gang responsible for killing an MS-13 member. Further, the State proffered testimony from a jailhouse informant who was expected to relate defendant's admission that the shootings were gang-related, and the testimony from an expert who would discuss MS-13 and the significance of defendant's references. Defendant asserts the prejudicial nature of this evidence far exceeded its probative value and required its exclusion under N.J.R.E. 403. We disagree.

When considering a trial judge's evidentiary rulings, we examine whether the decision reflects an abuse of discretion. State v. Torres, 183 N.J. 554, 567 (2005); State v. Brown, 170 N.J. 138, 147 (2001). A trial judge exercises discretion when determining "[t]he necessity for, or propriety of, the admission of . . . testimony, and the competence of such testimony[.]" State v. Zola, 112 N.J. 384, 414 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).

Here, following an evidentiary hearing, Judge Ravin considered the proffered evidence and evaluated its probative value to prove defendant's guilt including, its relevance to elements of the crimes charged; its tendency to prove the State's theory of plan, defendant's state of mind, or motive; whether other evidence is available to prove the same facts; and its tendency to disprove defendant's trial strategy, suggesting he was at the scene but not involved in the shootings.

Further, Judge Ravin weighed the evidence's probative value against its prejudicial nature, properly considering the four-part test delineated in State v. Cofield, 127 N.J. 328, 338 (1992).3 See State v. Carlucci, ___ N.J. ___, ___ (2014) (slip op. at 14). Judge Ravin agreed the portion of defendant's custodial statement implicating his younger half-brother, suggesting defendant accompanied Alfaro to Virginia for initiation into MS-13, along with portions of the State's proposed expert's report were found to be unduly prejudicial. However, on balance, the gang affiliation evidence was found necessary to shed light on defendant's "motive for purposeful or knowing murder" and found to outweigh the damaging nature of that evidence. The judge stated

without the evidence that [d]efendant is a gang member, the manner in which his gang operates, his status in the gang and that in that status he ordered the commission of these crimes, the State will not be able to prove his vicarious liability for the crimes committed by his codefendants. And it is for those reasons that the [c]ourt concludes that the probative value of the evidence is not outweighed by its apparent prejudice.

 

To assure fairness, the State was ordered to cooperate with defendant to sanitize the proposed gang-related references, limiting them to motive and intent. Also, jointly crafted instructions regarding the use of the evidence were to be submitted.4 Any unresolved challenges were to be addressed in a N.J.R.E. 104 hearing. Finally, during jury selection, prospective jurors were asked about their knowledge of MS-13 and whether defendant's membership in MS-13, if presented, would affect their ability to be fair and impartial.

On appeal, defendant argues the court erred by admitting the highly prejudicial gang affiliation evidence which he contends had limited probative value and "insufficient linkage existed between defendant's alleged gang membership and the crimes charged." He suggests his custodial statement was "just a 'story' filled with 'lie after lie' that defendant gave to police to try to obtain protection for his family[.]" We disagree, relying substantially on the reasoning set forth in Judge Ravin's written opinion following the evidentiary hearing and his oral opinion, when he considered and denied defendant's motion for a new trial. R. 2:11-3(e)(2).

In light of defendant's claim he was in the schoolyard, but not with the others who committed the murders and other crimes, the judge found the gang affiliation evidence relevant and necessary to link the six men to one another. Thus, Cofield's first prong was satisfied. He determined the evidence, which included proofs gathered in the law enforcement investigation and found defendant's custodial statements were convincing proof of his and co-defendants' gang membership. Finally, Judge Ravin satisfied the required prong four weighing analysis, which supports the conclusion, and we will not set it aside.

C.

Defendant next contends the State's summation exceeded permissible fair comment, which cumulatively "denied defendant a fair trial," citing State v. Frost, 158 N.J.76, 83 (1999). We reject this argument.

"New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012) (citations omitted). A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006).

A prosecutor is permitted to vigorously rebut specific arguments made by defense counsel. SeeState v. Mahoney, 188 N.J.359, 376-77 (2006) (holding a "prosecutor's comment[] . . . placed an unforgiving and harsh glare on . . . [the] defense" but was permissible). "Our task is to consider the fair import of the State's summation in its entirety." State v. Jackson, 211 N.J.394, 409 (2012) (citations and quotation marks omitted). "In every instance, the performance must be evaluated in the context of the entire trial . . . ." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). To justify reversal, the comment must have been "'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting Frost, supra, 158 N.J. at 83).

For context, we again note defendant maintained he was not part of the shootings, but merely present when they occurred. Further, in closing, the defense repeated defendant's custodial statement was all lies, stating defendant was "lying through his teeth . . . through fear, loyalty or whatever,"designed to protect himself from the actual perpetrators, specifically Carranza.

After recounting the evidence regarding defendant's arrest, the prosecutor repeated defendant's remarks: "How did you find me? Someone must have told on me," and his expressed concern for his family's safety. The prosecutor also noted co-defendant Carranza had surrendered prior to defendant's arrest. He then stated:

Well, if you assume the mind set of [defendant], he's concerned when he's arrested . . . that his homies are gonna think that because he's arrested, he's gonna squeal. He's gonna snitch. Well, he knew Mr. Carranza had been arrested. . . . So, to his mindset . . . his turnabout [w]as fair play.

Defendant asserts the summation, as presented, improperly implied co-defendant Carranza had given police a statement implicating defendant, so he retaliated by suggesting Carranza did the shootings. The reference to purported evidence not presented at trial is alleged to be improper.

A review of the summation as a whole makes clear the prosecutor was responding to the defense closing statements proffering an explanation for rejecting defendant's custodial statement. Judge Ravin determined the State's comments were "wholly appropriate" and denied the motion for a mistrial. In response to the defense request for a curative instruction, the State did not object and Judge Ravin told the jury, "there is no evidence that co-defendant, Jose Carranza, gave a statement implicating the defendant or anyone else, and you are not to speculate about that subject." When he resumed closing, the prosecutor clarified his "comments" explaining he was suggesting only this was "[defendants] mind set only; his mind set."

We agree with Judge Ravin that the prosecutor's comments were responsive to defense counsel's summation comments, which included assertions defendant avoided the police and was hiding in Maryland because he believed he and his family would be in danger if apprehended, because in his circle, it was believed a person, once arrested, would snitch. State v. McGuire, 419 N.J. Super. 88, 145 (App. Div.) ("A prosecutor's otherwise prejudicial arguments may be deemed harmless if made in response to defense arguments."), certif. denied, 208 N.J. 335 (2011). Moreover, the curative instruction and judge's clarifying comments assure the remark possibly inferring Carranza would not be misconstrued to implicate defendant or cause prejudice because the State explained it as a theory. State v. Burns, 192 N.J. 312, 334-35 (2007).

Defendant also challenges the prosecutor's statement that police unsuccessfully attempted to obtain a communications data warrant to identify calls to co-defendants, but defendant had destroyed his phone, thus, suggesting defendant was impeding the police efforts. Defendant objected and the State did not oppose the issue being addressed in a curative instruction. The judge explained to the jury:

[T]here was a reference in [the prosecutor's] summation that the police could not obtain a [c]ommunications [d]ata [w]arrant because [defendant] had destroyed his cellphone. As a matter of fact, a CDW could have been obtained to get the record of incoming and outgoing calls from the cellphone but the cellphone, itself, would not be able to be located. Therefore, you should disregard that aspect of [the prosecutor's] argument.

 

Judge Ravin's comment negates any perceived prejudice. His decision to interrupt the prosecutor's summation to issue a curative instruction, which both parties accepted as effective, fell "within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 647 (1984).

Finally, defendant complains the State unfairly prejudiced him by referring to the shootings as "an ad hoc street level MS-13 type of mindless attack." The challenged comment was as follows:

[Defendant] had the opportunity, with the other person, to see the soft target in an isolated area when nobody else was around. Is it a [m]aster [p]lan concocted by some evil organization at a high level? No. It's an ad hoc street level MS-13 type of mindless attack. . . . [W]e gotta call, we got to see if [Carranza]'s got heart. Hey, come on over. They was in the wrong place at the wrong time, with the wrong man to observe them.

 

[N.A.] tells you there wasn't a long meeting; quick talk, under a minute. How'd the weapons all of a sudden show up? Just carry a machete down the street? Weapons that, you think, valuable enough to hide in other jurisdictions? You just bop around with them looking for trouble with the police? Nah. They was playing, ladies and gentlemen. May not be as sophisticated as we conjure up when we think conspiracy, but there was.

Defense counsel objected and moved for a mistrial, or in the alternative, that the comment be stricken and the jury be instructed it was improper. The judge reserved his determination. Then, shortly thereafter, when the State's summation concluded, Judge Ravin immediately stated: "Ladies and gentlemen, a point of reference; [the prosecutor's] characterization of an MS-13 kind of mindless attack, I'm instructing you to disregard that. I have given you and will repeat, an instruction concerning the permitted and prohibited use of the MS-13 gang evidence." The jury charge also included the following:

There has been evidence in the case concerning MS-13 and defendant's alleged membership in that gang. It will be up to you to determine if this evidence is credible or not. If you do find it credible, it will be up to you to determine if it has any relevance to a possible motive for the charges set forth in the indictment, or any other issues you may have to decide. I instruct you, however, that you can never use the evidence that defendant may be a member of MS-13 to conclude that defendant has a predisposition to commit any crimes. As well, you can never use the evidence that defendant may be a member of MS-13 to conclude that defendant must be guilty of the crimes alleged in the indictment.

 

We have no doubt the jury fully followed these instructions. Burns, supra, 192 N.J. at 335. We conclude not only was the prompt and strong curative instruction effective, but also, when coupled with the instruction in the final charge, together they eliminated any possible prejudice caused by the comment. Defendant is entitled to a fair trial, not a perfect one. State v. R.B., 183 N.J. 308, 333-34 (2005).

Judge Ravin properly denied defendant's mistrial requests. Further, he appropriately rejected these claims as a basis for a new trial.

D.

Defendant argues his constitutional right to confront witnesses, as granted by the Sixth Amendment of the federal Constitution, through the Fourteenth Amendment, U.S. Const. amend. VI and XIV, and by the state Constitution, N.J. Const., Art. I, par. 10, was abridged by limitations imposed on his cross-examination of Will Jordan, who appeared for the State and related defendant's jail-house statement from when the two shared a cell.

Defendant attempted to inquire of "details" regarding Jordan's "prior crimes, length of incarcerations, and length of jail stints, arguing that the defense has wide latitude to cross-examine such a cooperating witness." The State objected when Jordan was asked whether he had been paroled after his first offense as a teenager. Judge Ravin sustained the objection as the inquiries' "relevance [wa]s outweighed by considerations of confusion of issues." Next, defendant questioned Jordan regarding his second criminal conviction, asking about the time that elapsed between his first release and when he committed his second offense. The State's objection was sustained for the same reason. Defendant resumed questioning, this time asking directly whether the plea agreement Jordan negotiated on pending charges included a recommendation for parole when first eligible and whether he understood the parole system. Next, the defense asked Jordan whether given his prior record, he would have difficulty getting paroled, without a plea agreement. Judge Ravin overruled the State's objection, as well as the inquiry of whether Jordan was familiar with how to plea bargain.

As the defense continued its probe of Jordan's past convictions, the judge sustained the State's objection to questions seeking to elicit specific details regarding the actual offense. Similarly, questions regarding the details of the charges to which the recent plea agreement applied were disallowed. Jordan did discuss the offenses, the significant jail time he faced, the terms of the plea deal, which included the State downgrading and dismissing of certain charges, and his agreement to testify against his co-defendants.

Also, during cross-examination, Jordan conceded he sought something in exchange for testifying about his conversations with defendant. Although he acknowledged he received no promises, he confirmed the offered plea deal included the minimum possible sentence.

We have considered the entirety of Jordon's cross-examination and reject as unfounded defendant's claimed denial of his constitutional right of confrontation. Jordan's cross-examination was extensive and the areas of inquiry, which were limited, were properly disallowed.

Pursuant to N.J.R.E. 611, courts may exercise discretion and limit the cross-examination of witnesses. State v. Engel, 249 N.J. Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991). "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674, 683 (1986). Accord State v. Cuni, 303 N.J. Super. 584, 608 (App. Div.), certif. denied, 152 N.J. 12 (1997). Cross-examination of a witness's prior criminal convictions may properly be limited if the convictions are remote, or when the proposed cross-examination would result in the undue consumption of time, confusion of issues. See State v. Balthrop, 92 N.J., 542, 544-47 (1983).

As applied here, Jordan's cross-examination was thorough and afforded defendant ample opportunity to highlight his bias and challenge his credibility. The judge's disallowance of details of past offenses or incarceration experiences was irrelevant, time consuming and possibly confusing. We discern no abuse of discretion.

E.

Next, defendant argues reversible error resulted from the court's failure to properly address issues resulting from the "[i]nflammatory and prejudicial media exposure" of the case. Specifically, he maintains pre-trial and on-going publicity required the judge to change venue, sua sponte, remove prospective jurors with knowledge of the case for cause, grant a mistrial or a new trial. We are not persuaded.

Beginning with jury selection, the select transcripts contained in the record show some jurors admitted they knew about the crimes or had some knowledge of MS-13. Of the twenty-one prospective jurors with prior knowledge of the case, six were seated as jurors after extensive voir dire and express finding the jurors could decide the case impartially based only upon the evidence presented in the courtroom. Important to our determination defendant suffered no prejudice is the fact he had not exhausted his preemptory challenges, having used only eighteen of the twenty allotted. See State v. Fortin, 178 N.J. 540, 629 (2004) ("[A] defendant may be entitled to a new trial if he has been forced to use one of his allotted peremptory challenges in order to excuse a juror who should have been excused for cause."). Moreover, defendant does not identify a sitting juror who should have been disqualified; rather, he only advances general assertions that any juror with prior knowledge should have been struck for cause.

The conduct of voir dire, which undoubtably is integral in safeguarding a defendant's right to a fair trial, State v. Papasavvas, 163 N.J. 565, 584 (2000), is left to the broad discretion of the trial court. Mu'Min v. Virginia, 500 U.S. 415, 427, 111 S. Ct. 1899, 1906, 114 L. Ed. 2d 493, 507 (1991); Fortin, supra, 178 N.J. at 629. A trial judge's exercise of reasoned discretion, generally, will not be disturbed on appeal. Ibid. Further, the judge's finding that a prospective juror is impartial will not be second-guessed by this court, absent a showing of clear error. State v. Williams, 113 N.J. 393, 410 (1988). Disqualification for cause is appropriate only upon a demonstration that a potential juror cannot set aside preexisting impressions and decide the case based solely upon the evidence presented in court. State v. Williams, 93 N.J. 39, 61 (1983).

Indeed, defendant could have used his preemptory challenges to strike any juror he believed was biased from prior exposure to this matter, but he did not. Further, he does not demonstrate any sitting juror, who had some degree of prior knowledge of the case, improperly "formed an unalterable opinion as to the defendant's guilt or innocence" requiring him or her to be excused. State v. Loftin, 191 N.J. 172, 187 (2007). Accordingly, this claim is unfounded.

In a related argument, on an almost daily basis, defendant moved for a mistrial or, alternatively, a change of venue based upon ongoing prejudicial newspaper reports on the case. The court denied each motion, finding no juror had read the cited articles. As required, on one occasion the judge interrupted the trial to poll the jury regarding possible media exposure. Having done so, Judge Ravin concluded there was no evidence of exposure to the identified articles.5 See State v. Tindell, 417 N.J. Super. 530, 564 (App. Div. 2011) (holding a trial judge concluding mid-trial publicity will prejudice a defendant must determine whether a realistic possibility of juror exposure occurred and if so, "voir dire the jurors to determine whether any exposure has occurred") (citations omitted). In an additional effort to protect defendant's rights, the judge repeatedly issued instructions for all jurors to avoid media accounts.

A motion for a change in venue "shall be granted if the court finds that a fair and impartial trial cannot otherwise be had." R. 3:14-2. We review decisions denying a request for a change of venue for an abuse of discretion. State v. Biegenwald, 106 N.J. 13, 35-36 (1987).

Here, our review of this record demonstrates that despite the publicity that occurred during trial, there is no evidence the sitting jurors were influenced by the publications. Also, much of the publicity surrounding the crimes had occurred years earlier and the judge took steps to assure anyone who may have read these accounts could perform the impartial role required of a juror. See State v. Koedatich, 112 N.J. 225, 273 (1988) (noting media exposure was muted because nearly two years had passed between intense publicity of the crimes and jury selection). Once the trial commenced, the judge repeatedly acted to safeguard the jury process. He instructed jurors not to review any media accounts and when necessary polled the jury to assure compliance. Defendant's suggestion of juror taint by media exposure are nothing more than unsupported speculation. Accordingly, Judge Ravin did not abuse his discretion or erroneously deny defendant's motions for a mistrial or new trial.

F.

The defendant also claims the judge erred in denying his motion for a new trial, arguing the verdict was against the weight of the evidence. The contention is rejected as meritless as the verdict overwhelmingly supported defendant's guilt beyond a reasonable doubt. R. 2:11-3(e)(2).

G.

Defendant's final arguments challenge his sentence as improper and excessive. After merger, Judge Ravin sentenced defendant to: three consecutive life sentences with sixty-three years, nine months, and three days of parole ineligibility for the murder convictions; a consecutive twenty-year term with seventeen years of parole ineligibility for attempted murder; concurrent twenty-year terms with seventeen years of parole ineligibility for the armed robberies; and a concurrent five-year term with two-and-a-half years of parole ineligibility on the conviction for third-degree unlawful possession of a handgun. Specifically, defendant believes the imposition of consecutive sentences as improper and challenges the findings supporting the aggravating factors (including one, two, three, five and nine, N.J.S.A.2C:44-1(a)(1), (2), (3), (5), (9)) and refusing to apply mitigating factor seven, N.J.S.A.2C:44-1(b)(7) (providing defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense).

Following our review we determine: the judge fully followed the sentencing guidelines and the record amply supports the application of selected aggravating factors, State v. Natale, 184 N.J. 458, 488-89 (2005); defendant's claim the trial judge erroneously disregarded mitigating factor seven is unfounded; and Judge Ravin provided a thorough analysis of the requisites set forth in State v. Yarbough, 100 N.J.627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), when determining to impose consecutive sentences.

Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of

appellate review of a criminal sentence.

[State v. Bieniek, 200 N.J. 601, 612 (2010).]

 

Moreover, the fully supported legal sentence does not "shock the judicial conscience" as unduly harsh when considered in the light of the circumstances of the crimes for which defendant was convicted. State v. Roth, 95 N.J.334, 365 (1984).

Affirmed.

 

1 N.A. testified that at the time of the attacks, Aeriel had lost his band scholarship and was living at home for the summer, but he intended to return to school in the fall.

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

3 Cofield's four-pronged test requires the court to consider:

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;

 

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.

 

[Cofield, supra, 127 N.J. at 338 (citation omitted).]

4 The jury charge issued was as follows:

There has been evidence in the case concerning MS-13 and defendant's alleged membership in that gang. It will be up to you to determine if this evidence is credible or not. If you do find it credible, it will be up to you to determine if it has any relevance to a possible motive for the charges set forth in the indictment, or any other issues you may have to decide. I instruct you, however, that you can never use the evidence that defendant may be a member of MS-13 to conclude that defendant has a predisposition to commit any crimes. As well, you can never use the evidence that defendant may be a member of MS-13 to conclude that defendant must be guilty of the crimes alleged in the indictment.

5 The appellate record does not include the marked newspaper articles, defense counsel's request that the jury be polled, or the transcript from the polling of the jury on this issue. Nevertheless, these facts are not disputed.