Opinion
DOCKET NO. A-0384-12T1
12-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTONIO SUAREZ-PEREZ, a/k/a ANTONIO D. SUAREZ, a/k/a ANTONIO D. PEREZ, a/k/a ANTONIO D. SUAREZPEREZ MINGO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Leone. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-07-1405. Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by LEONE, J.A.D.
Defendant Antonio Suarez-Perez appeals from his judgment of conviction for the first-degree murders of Sidney Wakefield and Joseph Fann. On appeal, defendant raises for the first time several challenges relating to the testimony of his co-defendants Eric Figueras and Samson Hearn. We find no plain error on those claims, and reject defendant's claims regarding a juror and his sentence. Accordingly, we affirm.
I.
We summarize the extensive evidence introduced at trial. Figueras and Hearn testified as follows regarding events leading up to the murders on the night of February 10-11, 2009.
Figueras was planning to spend the evening with Hearn. Defendant arrived at Figueras's home, saying he wanted to join them. Defendant showed both Figueras and Hearn a black gun, which he said held ten bullets. Defendant then asked Hearn to drive him to an apartment complex where his brother lived on Locust Avenue in Red Bank.
Hearn drove defendant and Figueras in his dark blue Audi. At a parking lot outside the complex, defendant exited the car and again showed them the gun. The three men then bought and drank beer, and defendant talked with his brother and other relatives.
Next, Defendant asked Hearn to drive him to a housing development. On the way, however, defendant asked Hearn to slow down, and appeared to be looking for someone. He asked Hearn to drive to a nearby gas station, where Wakefield's white Lexus was parked.
At the gas station, Hearn saw defendant speaking with Wakefield and Fann. When defendant returned to Hearn's car, defendant seemed upset. Defendant, Hearn, and Figueras returned to the parking lot on Locust Avenue. As soon as Hearn parked the Audi, defendant got out, told them to wait, said he would be right back, and walked out of sight.
Shortly thereafter, at about 1:30 a.m., neighborhood residents heard multiple gunshots and went to their windows. One eyewitness saw a man, wearing dark clothes and a hood over his head, standing over and shooting a victim lying face down on the ground. The man then ran up to a white car, and there was another gunshot. A second eyewitness saw a hooded man standing in the street firing, and then run around the corner. A third eyewitness saw a hooded man wearing dark clothes running back down Locust Avenue. The eyewitnesses heard up to ten gunshots.
Defendant later told Figueras that he had been paid $30,000 to kill the two men. Defendant subsequently told a fellow prisoner that he alone had killed the two men. Defendant related that he approached the passenger side of the car and shot the passenger twice, then the driver once. Defendant added that when the driver got out of the car and tried to get away, defendant caught up with the driver and shot him again.
Minutes later, when the police arrived at the scene, they found Wakefield lying dead in the street, fatally shot three times in the back of the head. He had been shot a total of eight times. Bloodstains on the driver's door and street indicated he had been wounded in the white Lexus, gotten out, and fallen on the street, where he had been shot repeatedly.
The police found Fann dead in the front passenger seat of the white Lexus. He had been shot twice in the head from the right side. The first bullet resulted in extreme bleeding, causing Fann to choke on his own blood, and cough blood on the now-unoccupied driver's seat. The second bullet brought death instantly.
Both victims had been shot from four to five feet away. Both had cash and cocaine on their persons.
Figueras and Hearn further testified as follows. After the first few gunshots, defendant's brother called from his apartment window and asked if it was defendant. Hearn and Figueras testified that right after they heard the last gunshot, defendant came hurrying toward them, red in the face, out of breath, and looking over his shoulder. Defendant got back in the Audi, repeatedly saying "Let's go!" or "Go!" As Hearn drove, defendant showed Figueras he now had some crack cocaine.
As they drove away, Figueras heard defendant say, "damn, I just killed both of these mother [f]*ers." Defendant removed the clip from the gun and added, "damn, I emptied the clip on both of those mother f*ers," and that the gun was jammed.
Patrolman James DePonte quickly responded to reports of multiple gunshots at 1:35 a.m. As he drove the empty streets to the scene, he saw a dark blue or black Audi traveling in the opposite direction one block from the scene. DePonte shined his spotlight on the car, which contained three men. As the Audi drove past, the man in the back seat turned around and looked back.
Patrolman DePonte arrived at the scene, found the carnage, and left to pursue the Audi. After a pursuit at extreme speed, he discovered and stopped the Audi at an intersection. He and another officer found Hearn in the driver's seat, Figueras in the front passenger seat, and defendant in the rear seat. The officers arrested the three men. Defendant was wearing a dark hooded sweatshirt, a dark coat, dark sneakers, and blue jeans. In the Audi, the police discovered a ski mask which smelled of defendant's cologne and bore his DNA.
The police tested the three men's hands for gunshot residue. Only defendant's hands tested positive for gunshot residue. Subsequent testing found a very high number of gunshot residue particles on defendant's ski mask, hooded sweatshirt, coat, and jeans.
Right before the Audi had been stopped, Figueras had seen defendant stick his hand out of the open car window. Later that morning, a citizen found a 9 mm semi-automatic gun lying on the side of the road near where the Audi had been stopped. The now-empty gun had a capacity of ten bullets, and was designed to lock after all the bullets were fired. All of the ten shell casings, and the six testable bullets, recovered in or near the victims had been fired from that gun.
The grand jury indicted defendant with the first-degree purposeful and knowing murder of Wakefield, and the first-degree purposeful and knowing murder of Fann, N.J.S.A. 2C:11-3(a)(1)-(2). Figueras was similarly charged with the first-degree murders of Wakefield and Fann. Defendant, Figueras, and Hearn were also charged with first-degree armed robbery of Wakefield and Fann, N.J.S.A. 2C:15-1, and with first-degree felony murder of Wakefield and Fann during an armed robbery, N.J.S.A. 2C:11-3(a)(3). The indictment charged defendant, Figueras, and Hearn with second-degree possession of a firearm for unlawful purposes, N.J.S.A. 2C:39-4(a), and with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant was lastly charged with fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1). Figueras was also charged with tampering, and Figueras and Hearn were charged with obstruction and hindering defendant's apprehension.
Thereafter, Figueras and Hearn pled guilty to hindering, and testified against defendant at trial, along with the eyewitnesses, police officers, and experts. Defendant did not present any witnesses. After an eight-week trial, the jury convicted defendant of the murders of Wakefield and Fann, the firearm and handgun offenses, and tampering. The jury acquitted defendant of armed robbery, and thus did not reach the felony murder counts.
The trial court sentenced defendant to consecutive terms of life in prison without parole for the murder of Wakefield, and for the murder of Fann. The court merged the count charging possession of a firearm for an unlawful purpose into the murder counts. The court also imposed a concurrent sentence of ten years' in prison, with five years of parole ineligibility, for unlawful possession of a firearm, and a concurrent sentence of eighteen months for tampering.
Defendant appeals his August 10, 2012 judgment of conviction, raising the following claims:
POINT I - THE PROSECUTOR USED THE "TRUTHFUL TESTIMONY" CONDITION OF THE PLEA BARGAIN TO BOLSTER THE CREDIBILITY OF THE CO-DEFENDANTS; THE CONDUCT CONSTITUTED IMPERMISSIBLE "VOUCHING." (Not Raised Below)
POINT II - THE PROSECUTOR IMPROPERLY ELICITED FROM BOTH HEARN AND FIGUERAS THAT THEY WERE AFRAID OF RETALIATION BY THE DEFENDANT BASED ON THEIR COOPERATION WITH THE STATE, THUS INTERJECTING, THAT THE DEFENDANT HAD A BAD CHARACTER AND PROPENSITY FOR VIOLENCE. (Not Raised Below)
POINT III - THE COURT SHOULD HAVE EXCUSED JUROR #12 IMMEDIATELY WHEN IT WAS DISCOVERED THAT THE JUROR FAILED TO DISCLOSE HE FILED A UNION GRIEVANCE AGAINST HIS EMPLOYER OVER HIS TREATMENT AT WORK DURING JURY SERVICE.
POINT IV - THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED WHEN DETECTIVE CRUZ TESTIFIED THAT HE HAD DETERMINED THAT THE TWO COOPERATING CO-DEFENDANTS GAVE TRUTHFUL PROFFER STATEMENTS. (Not Raised Below)
POINT V - THE TWO CONSECUTIVE SENTENCES OF LIFE WITHOUT PAROLE MUST BE VACATED BECAUSE THEY WERE INCORRECTLY BASED ON A "ZONE OF DANGER" ENHANCEMENT PENALTY THAT WAS FACTUALLY INAPPLICABLE.
II.
Most of defendant's claims arise from the testimony of Figueras and Hearn, particularly the events leading up to their testimony. Immediately after their arrest, Figueras and Hearn were separately interviewed by police officers three times. In the first round of interviews, both Figueras and Hearn related innocuous aspects of their travels with defendant that evening. Neither mentioned any gunshots.
In the second round of interviews, after the police revealed that Wakefield was dead, Figueras and Hearn were interviewed by Detective Jose Cruz. Figueras and Hearn now admitted hearing six to eight gunshots. They both said they had not mentioned the gunshots in the earlier interview because they were scared.
In the third round of interviews, Cruz confronted Figueras and Hearn with the information that the gun had been discovered and that the eyewitnesses had seen the shooter. Figueras and Hearn then revealed information incriminating defendant. Figueras and Hearn later testified to those facts at trial.
After their third round of interviews, Figueras and Hearn encountered each other and each revealed he had told the truth. Shortly thereafter, defendant separately encountered both Figueras and Hearn. Defendant told Figueras "you better not be snitching on me or I'm gonna kill you." Defendant similarly told Hearn "you guys are snitching," and threatened, "I got you." Defendant later angrily confronted Figueras about snitching on him, and said he would kill Figueras. Figueras told Hearn of defendant's threat. Defendant later made a threatening gesture to Hearn and Figueras.
Several months after being charged, Hearn offered to give a proffer statement, but was unable to proceed because he was afraid of retaliation. Hearn later revealed that defendant had approached him earlier that day and said that Figueras was snitching and that defendant was going to kill Figueras. Defendant also asked how Hearn's mother and grandmother were doing, which Hearn perceived as a threat.
Subsequently, both Hearn and Figueras gave proffer statements, and then pled guilty to second-degree hindering in return for a recommendation of a five-year prison sentence. As part of the plea deal, each man signed a memorandum of understanding with the prosecutor's office.
At trial, Figueras and Hearn both testified that they had lied and withheld information in their initial interviews because they were afraid of retaliation. Both testified that they had told the complete truth in their third interviews.
While in State prison, Figueras claimed to an inmate that he and defendant had gotten into the back seat of the Lexus, and each had killed one of the victims. Figueras testified that he lied to the inmate because he was scared of the inmates and wanted to appear a "bad ass" so they would not mess with him.
We note that Figueras weighed 355 pounds at the time of the murders, and there was eyewitness testimony that the shooter, like defendant, was "pretty skinny."
A.
Defendant now challenges the prosecutor's references to each witnesses' memorandum of understanding. In response to the prosecutor's questions quoting the memorandum, Figueras testified that his memorandum required him to "cooperate fully with" the investigation, to disclose "all relevant information," and to "testify truthfully when called as a witness in any grand jury, pretrial and/or petit jury proceedings . . . which concerns the events which resulted in the deaths of Sidney Wakefield and Joseph Fann." Figueras also agreed the memorandum stated that if he "testifies falsely under oath, this agreement is null and void and [he] will be prosecuted for perjury and/or false swearing." Figueras further agreed the memorandum provided that if the prosecutor's office believed Figueras had breached the agreement, "the State shall present the alleged breach to a judge of the Superior Court who will determine whether that breach exists," and that if the judge found a material breach "the agreement shall be declared null and void." Hearn gave similar testimony, and agreed that if the agreement was null and void, the original charges would be reinstated and he could be prosecuted.
Defendant did not object to any of that testimony at trial. On appeal, however, defendant first claims it was prosecutorial misconduct to elicit that testimony from Figueras and Hearn. "This is more properly viewed as a challenge to the trial court's admission of evidence." State v. Patterson, 435 N.J. Super. 498, 507 (App. Div. 2014). "'[C]onsiderable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion.'" State v. Kuropchak, 221 N.J. 368, 385 (2015) (citation omitted). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." Ibid. (internal quotation marks omitted). Moreover, "if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2). We must hew to that standard of review.
The trial court did not commit plain error in admitting that testimony. "[W]here one of the considerations for a plea is an agreement by a co-defendant to testify truthfully for the State against another defendant in return for a recommendation of leniency, such promise or understanding should be fully, fairly and honestly disclosed when it comes into question at the trial." State v. Nelson, 330 N.J. Super. 206, 216 (App. Div. 2000) (citing State v. Taylor, 49 N.J. 440, 456 (1967)). The terms of the memorandum were relevant to the interest of Figueras and Hearn in testifying at trial. The memorandum's condition of truthful testimony is a common and appropriate requirement of cooperating plea agreements. See, e.g., State v. Acevedo, 205 N.J. 40, 42 (2011).
Second, defendant now claims that the prosecutor improperly emphasized the memorandum's requirement to testify truthfully in his opening and closing statement. "Prosecutors 'are afforded considerable leeway in making opening statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009) (citation omitted). "'[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, 438 (2007) (citation omitted), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Moreover, defendant did not object to these references at trial. Thus, he "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.
A prosecutor in his opening statement may state "those facts that []he intends to prove in good faith[,]" and "also may argue all inferences that properly may be drawn from those facts." Id. at 577. Here, the prosecutor's opening made only brief mention of the memorandum which accurately related the subsequent testimony. The only mention of truthfulness was the accurate statement that if Hearn did not testify truthfully, that could be brought before the court who would then determine if there was a breach, which could void his plea deal. Moreover, the prosecutor made clear that the memorandum was "not an agreement for [Hearn] to testify against the defendant," but against "any individual involved in the murder," including Figueras. These remarks were not plain error.
This correctly summarized the memorandum, unlike defendant's counsel's opening, which asserted that "[i]t is up to the Prosecutor's Office to decide whether or not their testimony has been truthful enough to get their deal."
In his closing argument, the prosecutor referenced the memorandum primarily in response to defense counsel's closing argument. During closing, defense counsel had argued the memorandum provided that "[i]f you testify consistently with your proffer, then you will get your deal." The prosecutor responded that "[n]othing in the Memorandum of Understanding, not once, not ever, does it say you have to testify as to what your proffer statement says." The prosecutor argued that the memorandum instructed the witnesses to "tell the truth against whomever was involved." He added that the agreement sought "to get to the truth, no matter where it takes us." The prosecutor's argument did not misstate the memorandum or misuse its condition of truthful testimony. "'A prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial.'" Patterson, supra, 435 N.J. Super. at 510-11 (citation omitted).
Defendant claims the prosecutor was vouching. However, in eliciting the testimony about the memorandum, and referencing it in his opening and closing, "[t]he prosecutor did not vouch for the State's witnesses, [that is,] offer a personal opinion of defendant's veracity, or refer, explicitly or implicitly, to matters outside of the record." State v. Morton, 155 N.J. 383, 458 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
Defendant cites United States v. Smith, 962 F.2d 923 (9th Cir. 1992), but there the government argued "that the witness could not say 'whatever he wanted to say' because he would be prosecuted for perjury, and that 'the court wouldn't allow' the government to do anything wrong in the trial." United States v. Johnson, 437 F.3d 665, 672 (7th Cir. 2006) (quoting Smith, supra, 962 F.2d at 933-34), cert. denied, 547 U.S. 1207, 126 S. Ct. 2902, 165 L. Ed. 2d 919 (2006). By contrast, it is not vouching for "the government [to] elicit testimony regarding the witness's guilty plea or immunity deal[.]" Id. at 671-72. "By calling a witness who testifies pursuant to an agreement requiring him to testify truthfully, the Government does not insinuate possession of information not heard by the jury and the prosecutor cannot be taken as having expressed his personal opinion on a witness' veracity." United States v. Creamer, 555 F.2d 612, 617-18 (7th Cir.), cert. denied, 434 U.S. 833, 98 S. Ct. 118, 54 L. Ed. 2d 93 (1977). Thus, defendant has not carried his "'burden of proving that [any] error was clear and obvious and that it affected his substantial rights.'" State v. Koskovich, 168 N.J. 448, 529 (2001) (citation omitted).
Indeed, in the federal courts "'[i]t is well established that prosecutors may admit plea agreements, even those which include truthfulness provisions, without violating the dictates against vouching.'" United States v. Sigillito, 759 F.3d 913, 932 (8th Cir. 2014) (quoting United States v. Jones, 468 F.3d 704, 707 (10th Cir. 2006)), cert. denied, ___ U.S. ___, 135 S. Ct. 1019, 190 L. Ed. 2d 887 (2015); see, e.g., United States v. Milan, 304 F.3d 273, 290 (3d Cir. 2002), cert. denied, 538 U.S. 1024, 123 S. Ct. 1956, 155 L. Ed. 2d 869 (2003); see also United States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004) ("We see no plain error in simply eliciting on direct examination a witness's obligation through a plea agreement to tell the truth.").
B.
Defendant next claims it was improper for the prosecutor to elicit the testimony from Figueras and Hearn that defendant had threatened them for "snitching." Again, this is more correctly seen as "a challenge to the trial court's admission of evidence." Patterson, supra, 435 N.J. Super. at 507. Defendant did not object to any of the admitted testimony he now cites. Thus, he must show the court committed plain error.
Defendant objected only when Hearn said he also feared retaliation from defendant's friends and family, and that he was scared based on the threat defendant made to Figueras. The court sustained those objections.
"'Our courts have long held that evidence of threats made by a defendant to induce a witness not to testify is admissible because it illuminates the declarant's consciousness of guilt.'" State v. Goodman, 415 N.J. Super. 210, 232 (App. Div. 2010) (citation omitted), certif. denied, 205 N.J. 78 (2011); see, e.g., State v. Rechtschaffer, 70 N.J. 395, 413-15 (1976). Moreover, "'we have long permitted admission of evidence of threats and coercion "to explain discrepancies or contradictions in a witness' testimony.'" State v. Pierro, 253 N.J. Super. 280, 286 (App. Div.) (citation omitted), certif. denied, 127 N.J. 564 (1992); see, e.g., State v. DiRienzo, 53 N.J. 360, 383 (1969).
Defendant on appeal notes for the first time that the trial court did not issue a limiting instruction. However, defendant is "in a poor position to argue on appeal about the failure of the trial judge to give a [limiting] instruction when he had not requested one[.]" State v. Nelson, 318 N.J. Super. 242, 254 (App. Div.), certif. denied, 158 N.J. 687 (1999).
We have stated that evidence of threats to witnesses was "not subject to the restriction of [former] Evid. R. 55." State v. Johnson, 216 N.J. Super. 588, 611 (App. Div.), certif. denied, 107 N.J. 647 (1987). However, such evidence is more properly viewed as "admissible to demonstrate consciousness of guilt under N.J.R.E. 404(b)." State v. Yough, 208 N.J. 385, 402 n.9 (2011); see, e.g., State v. Buhl, 269 N.J. Super. 344, 364 (App. Div.), certif. denied, 135 N.J. 486 (1994). Evidence admitted under N.J.R.E. 404(b) should normally be accompanied by a limiting instruction. State v. Cofield, 127 N.J. 328, 340-41 (1992).
The court did instruct the jurors that, in determining the witnesses' credibility, they could consider the witnesses' "reasons why [their] prior statements or omissions were untrue," such as "self-protection [and] fear." See DiRienzo, supra, 53 N.J. at 384. Moreover, the need for an instruction that "the jury 'should not draw any inference of consciousness of guilt by defendant from his post-crime conduct unless it believes that defendant acted to cover up a crime'" was lessened by the explicitness of defendant's threats against Figueras and Hearn for "snitching." State v. Burden, 393 N.J. Super. 159, 171 (App. Div. 2007) (quoting State v. Williams, 190 N.J. 114, 134 (2007)), certif. denied, 196 N.J. 344 (2008).
Given the strong evidence against defendant, "we are not prepared to view this error as plain," State v. Johnson, 287 N.J. Super. 247, 262 (App. Div.), certif. denied, 147 N.J. 587 (1996), particularly as "the prosecutor did not suggest to the jury, in summation or otherwise, that they should use the evidence to draw . . . an improper conclusion." Burden, supra, 393 N.J. Super. at 172.
C.
Defendant now complains of certain testimony by the lead detective, Detective Cruz, concerning his investigation regarding Figueras and Hearn. Again, defendant did not object to this testimony below. Indeed, defendant's counsel, whose strategy included arguing that the police had rushed to judgment in accusing defendant, stated that she understood she opened the door to that testimony by her cross-examination of Cruz.
Defense counsel asked Detective Cruz if he believed Hearn's third statement was truthful. Counsel then suggested Cruz had not considered subsequent information, including that: Hearn had previously testified as a witness in a murder trial; delayed testing showed a small amount of gunshot residue on the clothes of Hearn and Figueras; and Figueras had told the inmate he had killed the victims with defendant. Counsel queried Cruz that after he received the statements from Hearn and Figueras in the third round of interviews, he was "pretty much done with [his] investigation as to who the shooter was," that he had "rush[ed] to pick a shooter," and that after the guilty pleas by Hearn and Figueras it was "too late to do anything about that."
The trial court ruled that defendant had opened the door for Detective Cruz to explain why he proceeded as he did in the investigation. On redirect, Cruz testified that if the subsequent information had caused him to suspect Hearn or Figueras, he could have notified the prosecutor who could have moved to rescind the plea deal under the memorandum. Cruz testified that he did not do so because Hearn's testimony in the prior murder trial appeared to be true; because some gunshot residue could have been transferred from defendant to the other occupants of the Audi, especially with wind coming in the open car window; and because Figueras's claim to the inmate was a lie because it did not fit the evidence of how the shooting occurred, which he had also briefly testified to on direct. Cruz testified that he therefore conducted the investigation with the belief that the third statements of Hearn and Figueras had been truthful.
The State's gunshot residue expert had already so testified. The tester also testified, so the jury was able to assess his credibility directly.
Normally, police officers are restricted to testifying that they acted "'upon information received,'" State v. Kemp, 195 N.J. 136, 154 (2008) (quoting State v. Bankston, 63 N.J. 263, 268 (1973)), and they may not opine on the credibility of other witnesses, State v. Frisby, 174 N.J. 583, 591-92 (2002). However, under "the invited error doctrine," the trial court did not abuse its discretion when it allowed Detective Cruz "to testify as to information he received in the course of his investigation that led him to focus on defendant as a suspect." Kemp, supra, 195 N.J. at 153-56. Where a defendant "opens the door by flagrantly and falsely suggesting that a police officer acted arbitrarily or with ill motive," "the officer might be permitted to dispel that false impression, despite the invited prejudice the defendant would suffer." State v. Branch, 182 N.J. 338, 352 (2005).
In any event, the trial court minimized any prejudice by careful and repeated instructions. Before the challenged testimony, the court instructed the jury that Cruz's testimony about information he received was not being offered for its truth but for the limited purpose of determining the credibility of his testimony about why he took certain investigatory steps. The court repeatedly reminded the jury that Cruz's conversations and conclusions were being admitted only for that limited purpose, and that the jury could not consider them for their truth or as substantive evidence. The court found the jury understood its limiting instructions, which the court reinforced in its final instructions. The court also instructed that the jury was the sole judge of credibility. We presume "jurors will follow the instructions given them by the court." State v. T.J.M., 220 N.J. 220, 237 (2015).
Moreover, independent of the testimony of Hearn and Figueras, the State submitted powerful evidence of defendant's guilt, including eyewitness testimony, expert testimony, and defendant's own admissions of guilt. Given the strength of that evidence, and of the court's instructions, this testimony by Cruz did not have "a clear capacity to have affected the outcome of trial." State v. Johnson, 325 N.J. Super. 78, 88 (App. Div. 1999), aff'd as modified, 166 N.J. 523 (2001); see also Kemp, supra, 195 N.J. at 156 (finding such testimony harmless).
III.
Defendant next challenges the trial court's decision to retain a juror after six weeks of trial. The juror's employer, the Port Authority of New York and New Jersey, required him to work every day he was not sitting as a juror. One month into the trial, the juror requested and received a letter from the court asking the Port Authority to give him two days off per week. The juror never raised any further problem.
Twelve days later, defendant's counsel reported to the court that she had received a letter addressed to her, in an envelope addressed to the Public Defender's Office, from the juror's supervisor at the Port Authority. The letter regarded a grievance the juror had filed on the second day of trial.
Defense counsel hypothesized that that the juror may have seen the letter and learned she worked for the Public Defender's Office. Defenses counsel further noted the juror had not mentioned his grievance, and speculated he might be resentful. Defense counsel then requested the juror be excused or questioned. The prosecutor pointed out that the letter did not mention the Public Defender's Office. The court noted that, as the State was still presenting its case, there was no reason to believe any resentment would be directed at the defense. The court denied defense counsel's requests, and denied a motion for a new trial.
Defendant's speculation that the jury learned that his counsel was an assistant public defender and thus inferred that he "'was likely to commit a crime for dollar gain'" is further rebutted because the jury acquitted him of the only crime requiring intent to seek economic gain, namely robbery. See State v. Martini, 131 N.J. 176, 265-67 (1993) (citation omitted), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995).
A sitting juror can be removed "for good cause shown." R. 1:8-2(d)(1). "Dismissal of a juror is committed to the sound discretion of the trial court. A reviewing court will not disturb the trial court's ruling absent a clear showing that the trial court abused its discretion in refusing to excuse the juror[.]" State v. Mance, 300 N.J. Super. 37, 55 (App. Div. 1997) (citation omitted); see also State v. Musa, 222 N.J. 554, 565 (2015). The court similarly has discretion on whether to question jurors. State v. R.D., 169 N.J. 551, 561 (2001). Given the admittedly speculative nature of defense counsel's motion, defendant fails to show the court abused its discretion in denying it.
IV.
Lastly, defendant challenges the jury's finding of a sentence-enhancement factor. Under N.J.S.A. 2C:11-3(b)(4)(b), a defendant convicted of first-degree murder shall be sentenced to life imprisonment without eligibility for parole under certain circumstances, including if "[i]n the commission of the murder, the defendant purposely or knowingly created a grave risk of death to another person in addition to the victim." Ibid.
The jury rejected a second such circumstance, namely that "[t]he murder was committed while the defendant was engaged in the commission of, or an attempt to commit . . . robbery." N.J.S.A. 2C:11-3(b)(4)(g).
The jury found that defendant in committing the murder of Wakefield purposely or knowingly created a grave risk of death to another person, and in committing the murder of Fann purposely or knowingly created a grave risk of death to another person. "[T]he State's evidence in its entirety, together with all reasonable inferences therefore, was more than sufficient for a reasonable jury to conclude [as it did], beyond a reasonable doubt[.]" See Wakefield, supra, 190 N.J. at 488.
Defendant tries to analogize this case to State v. Johnson, 120 N.J. 263 (1990). There, the defendant fatally shot Bruce Sharp in the head, and then beat Alice Sharp to death with a fireplace poker. Id. at 273. The Supreme Court ruled that "it was inappropriate to submit aggravating factor c(4)(b) to the jury" because it was uncontested "that Bruce Sharp was killed before Alice Sharp. Because he was dead, the attack on Mrs. Sharp could not possibly have created a risk of harm to Mr. Sharp." Id. at 301.
Johnson, and the cases cited hereafter, were capital cases applying an identical aggravating factor, the former N.J.S.A. 2C:11-3(c)(4)(b).
Here, by contrast, the evidence permitted the jury to find that defendant had shot multiple bullets into the front seat of the Lexus where Wakefield and Fann were seated together. Thus, both victims were "within the 'zone of danger' created by the defendant's conduct." State v. Price, 195 N.J. Super. 285, 307-08 (Law Div. 1984) (finding aggravating factor (c)(4)(b) could apply where the defendant fired multiple shots "at the intended murder victim while the 'other person' was sitting close to the victim on a couch"). Indeed, those bullets wounded both victims, enabling defendant to render the coup de grace to the bleeding Wakefield after he managed to exit the car and fall in the street, and to Fann as he sat in the Lexus slowly drowning in his own blood. Therefore, the jury could find that "[i]n the commission of the murder [of each], the defendant purposely or knowingly created a grave risk of death to another person[.]" N.J.S.A. 2C:11-3(b)(4)(b).
It is undisputed that defendant "was aware those persons were present." State v. Clausell, 121 N.J. 298, 344 (1990).
Thus, we need not reach whether defendant knowingly created a grave risk of death to the residents of the neighborhood. --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION