NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in parties in the the case case and and its its use use in in other other cases cases is is limited. limited. R. R.1:36-3. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5498-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ABRAHAM ROMAN, a/k/a JOSE RODRIGUEZ, and ABRAHAM TORRES,
Defendant-Appellant. __________________________
Submitted May 2, 2018 — Decided June 12, 2018
Before Judges Fuentes, Koblitz and Suter.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 13- 07-0651.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).
Michael A. Monahan, Acting Union County Prosecutor, attorney for respondent (Izabella M. Wozniak, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
After a jury trial, Defendant Abraham Roman appeals from his
convictions for second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), and third-degree theft, N.J.S.A. 2C:20-3. The
court sentenced defendant to the statutory minimum of five years
in prison, with an eighty-five percent parole disqualifier
pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
and a concurrent three year term for theft.
On appeal, defendant argues:
POINT I: DEFENDANT'S STATEMENT TO THE POLICE SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE INTERROGATORS INITIALLY WITHHELD THE FACT THAT THE VICTIM HAD DIED AS A RESULT OF THE ASSAULT.
POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT UNDER N.J.S.A. 2C:12-1[(a)].
POINT III: THE DEFENDANT'S SENTENCE WAS EXCESSIVE – THE COURT ERRED IN FAILING TO SENTENCE THE DEFENDANT TO ONE DEGREE LOWER.
POINT IV: THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL N.O.V. BASED UPON INSUFFICIENCY OF THE EVIDENCE SHOULD HAVE BEEN GRANTED.
We find no merit to these arguments and affirm.
I.
Defendant's case was severed from that of his co-defendant
Juan Cruz, who was charged with aggravated assault. We glean the
following facts from the trial testimony. Shortly before midnight
on November 21, 2012, the night before Thanksgiving, Detective
James Szpond of the Elizabeth Police Department was in an unmarked
patrol car in the parking lot of a car wash in Elizabeth when he
2 A-5498-15T2 heard something bump into his car, and saw two Hispanic males with
a bicycle. Both men got on the bicycle, and Szpond followed them
in his car.
The men separated, and Szpond stopped defendant, who said he
had been in a fight outside a bar. Defendant was holding a cell
phone that was not his, and Szpond took it from him. Szpond began
calling numbers in the call history of the phone, and eventually
made contact with Leslie DeJesus, who said she knew the phone's
owner, Victor Vasquez.
DeJesus testified that after she received the call, she
visited Vasquez and saw that he was limping and had two kitchen
knives by his bed. His face was bruised, swollen, and "purplish."
DeJesus brought Vasquez to the police station where he identified
his phone. Vasquez refused medical assistance and was not
interested in further police investigation of the incident. He
stayed at DeJesus's house that night, complaining that his head
and body were hurting. He refused medical attention because he did
not have insurance.
The following day, Vasquez went to his aunt's house for
Thanksgiving dinner. She testified that he looked "very beaten
up." "His lips, his face, his eyes, it was all swollen." She
encouraged Vasquez to go to the hospital, but he refused.
3 A-5498-15T2 Stephanie Burgos, the mother of Vasquez's son, testified that
they had lived together for nine years, but separated approximately
a year before Vasquez died. She typically saw Vasquez two or
three times a week, but after Thanksgiving, he did not see her or
the children due to injuries to his ribs and migraine headaches.
Vasquez's cousin and co-worker testified that after
Thanksgiving Vasquez did not go to work because his chest and head
hurt. Vasquez was unable to eat, and was losing his balance and
falling down. He had injuries to his neck and face. Vasquez
refused to see a doctor.
Carlos Luis Martinez, a supervisor at Vasquez's work,
testified that on the Monday after Thanksgiving, Vasquez did not
go to work because he had a headache. The next day, Vasquez went
to work, and Martinez saw scratches on his face, and marks under
one eye and on his forehead. Vasquez seemed weak, and said he was
dizzy and his neck, back and head hurt. He did not return to
work.
Martinez went to Vasquez's residence on Monday, December 3,
to check on him. Vasquez "had a real bad headache, his back was
hurting real bad and his neck." Martinez told Vasquez to go to
the hospital. On December 11, 2012, Vasquez's dead body was
found on the floor of his home.
4 A-5498-15T2 Two days later, detectives interviewed defendant twice.
Defendant waived his Miranda1 rights at the outset of both
interviews, which were recorded and played for the jury.
In his first statement, defendant said that at around 11 p.m.
on the night before Thanksgiving he was drinking at a bar and was
"a little tipsy." He stepped outside and Vasquez, who was Puerto
Rican, made disparaging comments to him about Columbians.
Defendant punched Vasquez in the face two or three times. Co-
defendant Juan Cruz joined in the fight.
After Vasquez left, Cruz said to defendant "come on, let's
go get him[,]" and they rode one bike to chase Vasquez. When they
caught up, Cruz hit Vasquez twice in the head. Vasquez dropped
to the ground, and defendant hit him and said he may have kicked
Vasquez. Defendant grabbed Vasquez's cell phone out of his pocket.
More than halfway through the first interview, the detectives
told defendant that Vasquez had died. Defendant responded: "That's
what I thought." The detectives asked why he thought that, and
defendant replied that it was because an experienced detective was
involved in the investigation. Defendant added, "I really didn’t
want to kill the guy." He said, "I never meant to hurt the guy
and kill him."
1 Miranda v. Arizona, 384 U.S. 436 (1966). 5 A-5498-15T2 The detectives asked defendant to drive around with them to
locate Cruz, who they found in a parking lot. After returning to
headquarters, defendant gave another recorded statement after
again waiving his right to remain silent. He said that he had not
been mistreated by the police.
Junaid Shaikh, M.D., the Union County medical examiner,
performed an autopsy. Vasquez had contusions on his forehead,
abrasions and contusions on his knees, and abrasions on his right
hand. The abrasions had started to heal, indicating that Vasquez
did not suffer the injuries immediately prior to death. The injury
to his forehead "was sustained some time ago."
Vasquez had a subdural hemorrhage on the right side and base
of his brain and bruising on the right lobe of his brain. The
doctor also saw a fresh hemorrhage, which could have been caused
in one of two ways; either a new injury or a "re-bleed." Shaikh
believed, to a reasonable degree of medical certainty, that Vasquez
suffered a re-bleed of the initial hemorrhage because there was
no evidence of another serious injury. The doctor explained that
a rebleed was not unusual if the individual did not seek medical
attention after the initial injury, and concluded the cause of
Vasquez's death was "subdural hemorrhage due to blunt head trauma."
Shaikh also testified that based on "decompositional changes"
to the body, he believed that Vasquez had died two or three days
6 A-5498-15T2 before his body was found. He testified that Vasquez died as a
result of injuries sustained approximately fourteen days prior to
his death, "plus or minus[] a couple of days."
Defendant did not testify or call any witnesses. Defense
counsel had retained an expert to counter Shaikh, but the expert
was "not prepared to go to trial," and defendant, in consultation
with counsel, chose not to call the expert.
II.
Defendant contends the court should have suppressed his
recorded statements, arguing that his waiver of the right against
self-incrimination was invalid because the police did not tell him
at the outset of the interview that Vasquez had died. When
determining whether a suspect's waiver of the right against self-
incrimination is knowing, intelligent, and voluntary, we defer to
a trial court's credibility determinations and factual findings
as long as they are supported by sufficient credible evidence in
the record. State v. W.B., 205 N.J. 588, 603 n.4 (2011); State
v. Yohnnson, 204 N.J. 43, 64-65 (2009). That standard applies
even when those findings are "based solely on video or documentary
evidence . . . ." State v. S.S., 229 N.J. 360, 379 (2017). So
long as the trial court "applied the correct legal test and its
findings are supported by sufficient credible evidence in the
record," we will only reverse its determination if "there was an
7 A-5498-15T2 abuse of discretion." State v. Nyhammer, 197 N.J. 383, 409 (2009).
Legal issues are reviewed de novo. State v. Shaw, 213 N.J. 398,
411 (2012); W.B., 205 N.J. at 603 n.4.
The privilege against self-incrimination is protected by the
Fifth Amendment to the Federal Constitution, and has been codified
in N.J.S.A. 2A:84A-19, as well as N.J.R.E. 503. Because the
privilege is not self-effectuating, "Miranda's prophylactic-
procedural safeguards" protect it. State v. Knight, 183 N.J. 449,
461 (2005) (quoting State v. Burris, 145 N.J. 509, 520 (1996)).
"[F]or a confession to be admissible as evidence, prosecutors must
prove beyond a reasonable doubt that the suspect's waiver was
knowing, intelligent, and voluntary in light of all the
circumstances." State v. Presha, 163 N.J. 304, 313 (2000).
The crux of that inquiry is whether the "suspect's confession
is the product of free will," which requires courts to "assess the
totality of circumstances surrounding the arrest and interrogation
. . . ." Ibid. This test requires a court to consider a suspect's
previous encounters with the law and "such factors as 'the
suspect's age, education and intelligence, advice as to
constitutional rights, length of detention, whether the
questioning was repeated and prolonged in nature and whether
physical punishment or mental exhaustion was involved.'" Ibid.
(quoting State v. Miller, 76 N.J. 392, 402 (1978)).
8 A-5498-15T2 The circumstances in this case are somewhat similar to those
in Nyhammer, 197 N.J. at 383. There, the police asked the
defendant if he would meet with them to discuss allegations that
his uncle sexually abused his grand-niece, Amanda. Id. at 389-
90. The defendant waived his Miranda rights and agreed to a
videotaped interview, admitting that he sexually abused Amanda.
Ibid. Only after the interview concluded, did the police inform
the defendant of Amanda's allegations against him. Id. at 391.
He then gave another videotaped statement in which he described
the sexual abuse in detail. Id. at 391-92.
The defendant argued that "his confession should be deemed
involuntary because, in addition to giving the Miranda warnings,
the police must inform a person, at the outset of any questioning,
that he is a suspect (if indeed he is a suspect) or read again
the Miranda warnings after questioning begins when he becomes a
suspect." Id. at 401. The Court rejected the defendant's
argument, and found that Nyhammer did not "fall within the limited
category of cases in which we have applied a bright-line rule."
Id. at 405. The Court applied the totality-of-the-circumstances
test, holding that the defendant's confession was properly
admitted into evidence because he voluntarily and intelligently
waived his rights. Id. at 408-09.
9 A-5498-15T2 Though the defendant was not aware that he was a suspect, the
police were not required to supply him "'with a flow of information
to help him calibrate his self-interest in deciding whether to
speak or stand by his rights' because 'the additional information
could affect only the wisdom of a Miranda waiver, not its
essentially voluntary and knowing nature.'" Id. at 407 (quoting
Colorado v. Spring, 479 U.S. 564, 576-77 (1987)). In other
words, "a valid waiver does not require that an individual be
informed of all information useful in making his decision." Ibid.
(quoting Spring, 479 U.S. at 576).
The same is true here. Defendant was aware of his rights and
chose to waive them. While he was not told that the victim had
died, that piece of information was not essential to a voluntary
and knowing waiver of his rights. Defendant also said he suspected
the victim had died before he was informed of the death. Moreover,
defendant continued to cooperate with the detectives even after
they told him Vasquez had died, going so far as to drive around
Elizabeth with them to locate another suspect. The totality of
the circumstances demonstrate that defendant's waiver of his
rights was knowing, intelligent, and voluntary.
Defendant was thirty-one years old. He had a high school
diploma and could read and write English. He had three prior
criminal convictions, and was familiar with his Miranda rights
10 A-5498-15T2 because he had previously read them and seen them administered on
television. Defendant read the warnings aloud and said he
understood them before waiving his right to remain silent.
Defendant later volunteered that he had "waived [his] rights"
and "spoke freely." He was not detained for a lengthy period of
time, the questioning was not repeated or prolonged, nor was
physical punishment or mental exhaustion involved. In fact, during
the interview defendant said that he was not mistreated, and that
"there was no pressure."
Defendant also quotes from the Court's opinion in State v.
O'Neill, for the proposition that "police officers conducting a
custodial interrogation cannot withhold essential information
necessary for the exercise of the privilege." 193 N.J. 148, 179
(2007). In O'Neill, the police interrogated the nineteen-year-
old defendant for ninety-five minutes, eliciting statements
linking him to a murder. Id. at 154. The police then advised the
defendant of his Miranda rights, and interrogated him for an
additional five hours, again eliciting self-incriminating
statements. Ibid. At trial, the State sought to admit into
evidence only the statements made after the police advised the
defendant of his Miranda rights. Id. at 154.
When reversing the admission of the statement, the Court
explained that the "two-step, 'question-first, warn-later'
11 A-5498-15T2 interrogation is a technique devised to undermine both the efficacy
of Miranda and our state law privilege." Id. at 180. The Court,
however, refused to adopt a "bright-line rule" prohibiting the
practice. Id. at 181. Thus, O'Neill supports the totality-of-
the-circumstances test applied by the trial court here. A two-
step process was not used here. Based on the totality of these
circumstances, defendant's waiver of his right against self-
incrimination was properly found to be knowing, intelligent, and
voluntary.
III.
Defendant argues the court erred by failing to instruct the
jury on simple assault as a lesser-included offense of aggravated
manslaughter. At the charge conference, the parties agreed that
the court should instruct the jury on reckless manslaughter as a
lesser-included offense of aggravated manslaughter. Defendant
sought an instruction on simple assault as an additional lesser-
included offense, but objected to the inclusion of an aggravated
assault instruction.2
The trial court found defendant's position contradictory. It
explained that "the elements are exactly the same, except for the
2 Defense counsel objected because the consequences of an aggravated assault conviction could be "more severe" than a conviction for reckless manslaughter.
12 A-5498-15T2 bodily injury, plain bodily injury for a simple assault, and
significant bodily injury, and serious" bodily injury for
aggravated assault. The court also addressed this issue in its
written opinion denying defendant's motion for a new trial. The
court found "there was no rational basis to charge Simple Assault,
a mere beating[,] when the evidence supported a finding that the
beating resulted in the victim's death." The court added that
"the jury did not have to find that any one of [] defendant's
blows caused the victim's death" so long as it found that "he
and/or the co-defendant beat the victim causing the victim's
death."
Clear and correct jury instructions are essential for a fair
trial because they are "a road map to guide the jury, and without
an appropriate charge, a jury can take a wrong turn in its
deliberations." State v. Nelson, 173 N.J. 417, 446 (2002) (quoting
State v. Koskovich, 168 N.J. 448, 507 (2001)). If the "defendant
requests a charge on an offense indicated by the proofs, the charge
should be given." State v. Sloane, 111 N.J. 293, 299 (1988).
When a trial court denies a defendant's request to instruct
the jury on a lesser-included offense, an appellate court must
determine "whether the evidence presents a rational basis on which
the jury could [1] acquit the defendant of the greater charge and
[2] convict the defendant of the lesser." State v. Alexander, ___
13 A-5498-15T2 N.J. ___, ___ (2018) (slip op. at 19) (quoting State v. Cassady,
198 N.J. 165, 178 (2009)). The Criminal Code directs that "[t]he
court shall not charge the jury with respect to an included offense
unless there is a rational basis for a verdict convicting the
defendant of the included offense." N.J.S.A. 2C:1-8(e) (emphasis
added).
Defendant argues that there was a rational basis to charge
the jury on simple assault because "the jury could have found that
the defendant punched the victim, that the defendant intended to
cause only bodily injury, and that the causal relationship between
the assault and the victim's death had not been proven beyond a
reasonable doubt."
A defendant is guilty of aggravated manslaughter if he or she
"recklessly causes death under circumstances manifesting extreme
indifference to human life." N.J.S.A. 2C:11-4(a)(1). The State
must prove three elements beyond a reasonable doubt: that the
defendant (1) caused the victim's death; (2) did so recklessly;
and (3) did so under circumstances manifesting extreme
indifference to human life. Model Jury Charge (Criminal),
"Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22,
2004). Reckless manslaughter requires the State to prove only the
first two elements: that the defendant (1) caused the victim's
death and (2) did so recklessly. Model Jury Charge (Criminal),
14 A-5498-15T2 "Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1))" (rev. Mar. 22,
2004).
The difference between aggravated and reckless manslaughter
"is the difference in the degree of the risk that death will result
from defendant's conduct." State v. Curtis, 195 N.J. Super. 354,
364 (App. Div. 1984); see also State v. Breakiron, 108 N.J. 591,
605 (1987) (endorsing our decision in Curtis). If the defendant
created only "a mere possibility of death," then he is guilty of
reckless manslaughter. Ibid.
A defendant is guilty of simple assault if, as relevant here,
he "purposely, knowingly or recklessly causes bodily injury to
another." N.J.S.A. 2C:12-1(a)(1) (emphasis added). The State
must prove beyond a reasonable doubt that the defendant (1) caused
bodily injury, and (2) acted purposely or knowingly or recklessly.
Model Jury Charge (Criminal), "Simple Assault (Bodily Injury)
(Lesser Included Offense) (N.J.S.A. 2C:12-1(a)(1))" (rev. May 8,
2006).
The jury acquitted defendant of aggravated manslaughter, and
convicted him of reckless manslaughter, indicating it found that
his actions created a possibility, as opposed to a probability,
of death. See Model Jury Charge (Criminal), "Aggravated
Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22, 2004)
(differentiating between aggravated and reckless manslaughter).
15 A-5498-15T2 Defendant argues that "the jury could have found that
defendant did not cause, either directly or as an accomplice, the
death of the victim." Causation, in the context of manslaughter,
requires the State to prove beyond a reasonable doubt that "but
for the defendant's conduct, [the victim] would not have died."
Model Jury Charge (Criminal), "Aggravated Manslaughter (N.J.S.A.
2C:11-4(a))" (rev. Mar. 22, 2004); see also Model Jury Charge
(Criminal), "Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1))" (rev.
Mar. 22, 2004) (stating same). The State also must prove that the
victim's death was
within the risk of which the defendant was aware. If not, it must involve the same kind of injury or harm as the probable result of the defendant's conduct and must also not be too remote, too accidental in its occurrence, or too dependent on another's volitional act to have a just bearing on the defendant's liability or on the gravity of his/her offense. In other words, the State must prove beyond a reasonable doubt that [the victim's] death was not so unexpected or unusual that it would be unjust to find the defendant guilty of . . . manslaughter.
[Model Jury Charge (Criminal), "Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22, 2004).]
see also Model Jury Charge (Criminal), "Reckless Manslaughter
(N.J.S.A. 2C:11-4(b)(1))" (rev. Mar. 22, 2004) (stating same).
Whether defendant's actions caused Vasquez's death was the
16 A-5498-15T2 critical issue in dispute, and the jury made its determination as
to the cause of death.
While defendant contested that the subdural hemorrhage caused
Vasquez's death, he did not contest that he and Cruz caused the
subdural hemorrhage when they attacked Vasquez. A subdural
hemorrhage constitutes more than "pain, illness, or [physical]
impairment," and is therefore more serious than simple "bodily
injury" under N.J.S.A. 2C:11-1(a). As confirmed by Shaikh's
testimony, a subdural hemorrhage is "impairment . . . of the
function of [a] bodily . . . organ," namely the brain, and is
"serious bodily injury" under N.J.S.A. 2C:11-1(b).
There was no evidence to support the notion that defendant
caused only "bodily injury" to Vasquez and therefore there was no
rational basis for the jury to find defendant guilty of simple
assault. See State v. Crisantos, 102 N.J. 265, 280 (1986) (stating
that there is no rational basis to support a jury charge if it "is
substantiated by no testimony in the record").
IV.
Defendant contends that the court should have sentenced him
as a third-degree offender, downgrading the reckless manslaughter
charge. Prior to sentencing, the State moved for imposition of a
discretionary extended term because defendant had three prior
felony convictions and was a persistent offender under N.J.S.A.
17 A-5498-15T2 2C:44-3(a). The State recommended that defendant be sentenced to
an aggregate term of fifteen years in prison with an eighty-five
percent parole disqualifier. Defendant conceded that he was
eligible for a discretionary extended term as a persistent
offender, but requested the court sentence him as a third-degree
offender to three or four years in prison, subject to NERA.
The court denied the State's motion for an extended term,
because defendant was "extremely remorseful," had "been truthful
numerous times," and "it wasn't [his] intent to kill Mr. Vazquez."
Defendant argued that the court should find the following
mitigating factors: two, that he "did not contemplate that his
conduct would cause or threaten serious harm"; three, that he
"acted under a strong provocation"; five, that the "victim of
[his] conduct induced or facilitated its commission"; nine, that
his "character and attitude . . . indicate that he is unlikely to
commit another offense"; and twelve, his "willingness . . . to
cooperate with law enforcement authorities." See N.J.S.A. 2C:44-
1(b). The court found no mitigating factors.
The court found aggravating factors three, the risk that
defendant will commit another offense; six, the extent of his
prior criminal record and seriousness of the offense; and nine,
the need for deterring defendant and others from violating the
law. See N.J.S.A. 2C:44-1(a).
18 A-5498-15T2 Although it found that the aggravating factors outweighed the
mitigating factors, the court sentenced defendant to the statutory
minimum aggregate sentence: five years in prison subject to NERA.
Thus, even if the court had formally found mitigating factor
twelve, that defendant cooperated with law enforcement, it could
not have legally sentenced defendant to a lesser term. The court
in its comments made clear that it sentenced defendant leniently
due to defendant's cooperation with law enforcement and his deep
remorse.
The court properly rejected defendant's request to be
sentenced as a third-degree offender. Under N.J.S.A. 2C:44-
1(f)(2), if a defendant is convicted of a first- or second-degree
offense, and a sentencing court "is clearly convinced that the
mitigating factors substantially outweigh the aggravating factors
and where the interest of justice demands, the court may sentence
the defendant to a term appropriate to a crime of one degree lower
than that of the crime for which he was convicted." Thus, "for a
sentence to be downgraded, a two-step test must be satisfied."
State v. Megargel, 143 N.J. 484, 495 (1996). The sentencing court
must be "(1) clearly convinced that the mitigating factors
substantially outweigh the aggravating factors and (2) the
interest of justice must demand the downgrade." Ibid. Neither
of those requirements was satisfied in this case.
19 A-5498-15T2 We cannot reverse a sentence "unless (1) the sentencing
guidelines were violated; (2) the aggravating and mitigating
factors found by the sentencing court were not based upon competent
and credible evidence in the record; or (3)" it "'shock[s] the
judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-
65 (1984)). The trial court followed sentencing guidelines in
imposing the most lenient sentence permitted by law.
Finally, defendant argues briefly that the court erred by
denying his motion for a judgment of acquittal based on
insufficient evidence. The State presented sufficient evidence
that defendant recklessly caused the victim's death by assaulting
him and stole the victim's cell phone. This argument is without
sufficient merit to require further discussion. R. 2:11-3(e)(2).
Affirmed.
20 A-5498-15T2