NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5800-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HERIC N. MALAVE, a/k/a NELSON HERIC MALAVE, CARLOS FIELDS, and ERIC MALAVE,
Defendant-Appellant. _________________________
Argued November 20, 2019 – Decided April 27, 2020
Before Judges Koblitz, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 15-10-1390.
Remi Lee Spencer argued the cause for appellant (Spencer & Associates, attorneys; Remi Lee Spencer, of counsel and on the briefs).
Jaimee M. Chasmer, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Dennis Calo, Acting Bergen County Prosecutor, attorney; Jaimee M. Chasmer, of counsel and on the brief).
PER CURIAM
Following a bifurcated jury trial, defendant was convicted of second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count one);
fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count three);
third-degree resisting arrest by force, N.J.S.A. 2C:29-2(a)(3)(a) (count four);
third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(a)
(count five); third-degree possession of ethylone, a controlled dangerous
substance, N.J.S.A. 2C:35-10(a)(1) (count seven); first-degree unlawful
possession of a weapon by a person with a prior robbery conviction, N.J.S.A.
2C:39-5(b) and 2C:39-5(j) (count eight); and second-degree certain persons not
to possess weapons, N.J.S.A. 2C:39-7(b) (count nine). Defendant was acquitted
of second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-5(b) (count two); and third-degree aggravated assault by pointing a
firearm at a police officer, N.J.S.A. 2C:12-1(b)(9) (count six).
The convictions stemmed from a police encounter during which defendant
fled from police on foot twice, and wrestled with police after they tried to arrest
him for driving while intoxicated (DWI). Although the arresting officer testified
defendant pointed a handgun at him during the struggle, defendant denied
A-5800-17T4 2 possessing a gun or assaulting the officer, claiming the police used excessive
force in effectuating the arrest. On July 11, 2018, the trial court denied
defendant's motion for a new trial. 1 In a July 20, 2018 judgment of conviction,
the court sentenced defendant to an aggregate nineteen-year term, with eight
years of parole ineligibility.
On appeal, defendant raises the following points for our consideration:
POINT I
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT BOTH OF HIS TRIALS.
....
[A]. DURING HIS OPENING STATEMENT AT THE FIRST TRIAL, DEFENDANT'S ATTORNEY IMPROPERLY COMMITTED DEFENDANT TO TESTIFYING.
[B]. BY INFORMING THE JURY THAT DEFENDANT HAD A PRIOR CONVICTION FOR SECOND-DEGREE ROBBERY, DEFENSE COUNSEL INEXPLICABLY REVEALED THE NATURE OF THAT PRIOR CONVICTION DESPITE THE TRIAL COURT'S RULING THAT
1 Defendant's earlier motion for a judgment of acquittal, R. 3:18-1, was also denied. A-5800-17T4 3 SANITIZATION WAS WARRANTED IN THIS CASE. (NOT RAISED BELOW).
[C]. DEFENDANT RECEIVED NO REPRESENTATION AT ALL DURING THE SECOND TRIAL OF THE BIFURCATED PROCEEDINGS (NOT RAISED BELOW).
POINT II
DEFENDANT WAS DEPRIVED OF HIS STATE CONSTITUTIONAL RIGHT TO TESTIFY AT HIS SECOND TRIAL WHEN NEITHER THE COURT NOR DEFENSE COUNSEL INFORMED HIM THAT HE HAD A RIGHT TO TESTIFY AT THAT PROCEEDING. ([N.J. CONST.], ARTICLE I, PARAGRAPHS 1 AND 10) (NOT RAISED BELOW).
POINT III
THE PROSECUTOR IMPROPERLY FORCED DEFENDANT TO CHARACTERIZE THE STATE TROOPERS AS LYING AND HE VIRTUALLY TESTIFIED ABOUT A MATTER OUTSIDE THE EVIDENCE, THEREBY DENYING DEFENDANT A FAIR TRIAL. ([U.S. CONST.], AMEND. 6; [N.J. CONST.], ARTICLE I, PARAGRAPH 10) (NOT RAISED BELOW).
[A]. THE PROSECUTOR REPEATEDLY FORCED DEFENDANT TO CHARACTERIZE THE TROOPERS AS LYING. . . .
A-5800-17T4 4 [B]. THE PROSECUTOR VIRTUALLY TESTIFIED ABOUT A MATTER OUTSIDE THE EVIDENCE. . . .
POINT IV
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED [DEFENDANT] A FAIR TRIAL. ([U.S. CONST.], AMEND. 6; [N.J. CONST.], ARTICLE I, PARAGRAPH 10) . . . .
Based on our review of the record and the applicable legal principles, we affirm.
We glean these facts from the trial record. At approximately 9:30 a.m. on
June 20, 2015, while responding to a car fire on the express lanes of westbound
Interstate 80 in Teaneck, State Troopers Eric Chaves 2 and Paul Volpe observed
a two-car accident, after which both cars pulled over on the shoulder of Interstate
80. When Chaves approached the driver side of one of the vehicles, he
"immediately detected an odor of alcohol" and "raw marijuana" "emanating
from the vehicle." Chaves asked the driver, later identified as defendant, for his
driving credentials, but defendant was unable to produce a driver's license.
During the interaction, Chaves noted that defendant was "slurr[ing] [his]
2 Alternate spellings of Chaves appear in the record. A-5800-17T4 5 speech," was "sweating," "would [not] make eye contact," and attempted to
"drink" from an "unopened" "bottle of liquor on his passenger seat." As a result,
Chaves ordered defendant to exit the vehicle in order to perform field sobriety
tests.
After defendant failed the field sobriety tests, 3 Chaves determined
defendant was impaired and proceeded to place him under arrest for DWI.
However, when Chaves attempted to handcuff defendant, defendant ran away.
Chaves "gave chase" as defendant ran across three Interstate 80 lanes, hopped
over a guardrail, stumbled, and landed "on his stomach" "in a [wooded] area, in
between the local lanes." After Chaves "straddl[ed] [defendant's] back," he
noticed that defendant was reaching inside "his private area." Fearing that
defendant was reaching for a gun, Chaves reached into defendant's pants and felt
"the barrel of a gun."
While "trying to control [defendant] . . . with [his] left hand," Chaves
attempted to draw his service weapon. However, before he could unholster his
weapon, defendant "rolled over" and "pointed" "a small silver handgun" at
Chaves. Chaves then engaged in "a tug-of-war" with defendant, after which he
3 A motor vehicle recording (MVR) was admitted into evidence and played for the jury, showing Chaves approaching defendant's vehicle and defendant performing the field sobriety tests. A-5800-17T4 6 was able to dislodge the gun from defendant's hand. At that point, Volpe arrived
and "tossed the gun" "[b]etween five and ten feet" into "the wooded area."
As defendant "continued to resist," both Chaves and Volpe began striking
defendant with their batons in his "torso" and "back," while ordering defendant
to place his hands behind his back. Chaves and Volpe each struck defendant
"approximately ten to [fifteen]" times. While the troopers continued to
administer blows, defendant "push[ed] up . . . onto his feet" and "swung" at
Chaves, hitting the "left side of [Chaves's] face." Defendant then "took off"
once again on Interstate 80, with Chaves and Volpe chasing him. Volpe caught
defendant first, as he attempted to "run[] up a steep embankment," and
"deployed OC mace,"4 spraying defendant "[i]n the face" to subdue him. Once
Chaves caught up, he was able to handcuff defendant.
After defendant was handcuffed, he was turned over to other officers who
arrived on the scene. A search incident to arrest revealed a small plastic bag on
defendant's person, containing a white powder later identified as Ethylone,
commonly known as "Molly," a schedule one controlled dangerous substance.
One of the responding officers, Trooper Herberto Maldonado, located "a small
4 "'OC spray,' [is] a chemical agent." Mejia v. N.J. Dep't of Corr., 446 N.J. Super. 369, 372 (App. Div. 2016). A-5800-17T4 7 silver" "semi-automatic" handgun in the "brush area" and recovered a total of
three .25 caliber bullets from the gun, two in the magazine and one inside the
chamber. Chaves was transported by ambulance to Hackensack University
Medical Center and treated for "a swollen knee" and "lacerations" to his "head
[and] hands."
At the first trial, Chaves and Maldonado testified as fact witnesses. The
State also produced an expert in firearms identification and operability, who
opined that the handgun recovered from the scene "was operable and capable of
being discharged." In addition, the parties stipulated that defendant was never
issued a firearms permit. For the defense, Volpe was called as a witness but was
declared a hostile witness by the court. N.J.R.E. 611(c). His testimony was
generally consistent with Chaves's. Defendant also testified on his own behalf.
No witnesses were called at the second trial on counts eight and nine.
During his testimony in the first trial, defendant admitted that when
Chaves approached his car, the odor of marijuana could be detected because he
had been smoking marijuana the previous day. However, he denied that there
was any detectible odor of alcohol because he only had a closed "bottle of wine"
in his car. Defendant also admitted that after he performed the field sobriety
tests, he ran away twice instead of submitting to an arrest. He explained that he
A-5800-17T4 8 ran away because the officers became aggressive and he "was scared." He also
ran because he had "a single Molly pill" on his person, and he had a prior robbery
conviction. However, defendant adamantly denied possessing the silver
handgun recovered from the scene or pointing the gun at Chaves. Defendant
denied ever touching or handling the gun, and did not know where the gun came
from.5 Defendant also denied punching, kicking, or biting the officers. He
stated that when the officers caught up to him, although he yelled that he was
"not resisting," the officers hit him excessively, as a result of which he suffered
injuries.
In Point I, defendant argues he was denied effective assistance of counsel
by his two private trial attorneys measured by the standards enunciated in
Strickland v. Washington, 466 U.S. 668, 686 (1984) and State v. Fritz, 105 N.J.
42, 58 (1987). According to defendant, at the first trial, his attorney "told the
jury during opening remarks that defendant would testify," thus "preclud[ing]
him from waiving his right to testify," and "told the jury that he had a prior
conviction for second-degree robbery," thus "shatter[ing] the sanitization ruling
5 When specifically asked on cross-examination "how the handgun got there," defendant responded "[t]hat's a question you got to ask the Troopers." A-5800-17T4 9 that he had received at the Sands/Brunson[6] hearing." Defendant continues that
at the second trial, "neither of his attorneys said a word on his behalf."
"Our courts have expressed a general policy against entertaining
ineffective-assistance of counsel claims on direct appeal because such claims
involve allegations and evidence that lie outside the trial record." State v.
Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460
(1992)). "However, when the trial itself provides an adequately developed
record upon which to evaluate defendant's claims, appellate courts may consider
the issue on direct appeal." Ibid. Here, we decline to reach defendant's
ineffective assistance of counsel claims without the benefit of a fulsome record
developed in a post-conviction relief proceeding in which trial counsel may
explain the reasons for their actions. See State v. Wiggins, 291 N.J. Super. 441,
452 (App. Div. 1996) ("The Sixth Amendment contentions can best be presented
by way of a petition for post-conviction relief.").
In Point II, defendant argues "[t]he trial court . . . committed reversible
error when it failed to ensure that [defendant] knew of his right to testify at the
second, separate trial." We disagree.
6 State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993). A-5800-17T4 10 "Few principles are more fundamental than a criminal defendant's right to
testify in his own defense." State v. Lopez, 417 N.J. Super. 34, 39 (App. Div.
2010). In Lopez, we explained that bifurcated trials
are two separate trials which may, but need not, be conducted before different juries. The second trial is a new trial[;] the defendant is entitled to the presumption of innocence and, as a consequence of that, to an instruction that each and every material fact that makes up the crime, including obviously the fact of possession, must be proven by the State beyond a reasonable doubt. Consequently, a waiver of the right to testify in the [first] trial does not constitute a waiver of the right to testify in a later trial on a separate charge.
[Id. at 40 (first alteration in original) (citations and quotation marks omitted).]
Admittedly, the court failed to voir dire defendant about his right to testify
at the second trial, as it had done at the first trial. However, while we have
recognized that "'the better practice [is] for a trial court to inquire of counsel
whether he or she has advised a defendant . . . of his or her right to testify[,] '
[o]r, alternatively, to advise defendant directly," State v. Ball, 381 N.J. Super.
545, 556 (App. Div. 2005) (first and second alterations in original) (quoting
State v. Savage, 120 N.J. 594, 631 (1990)), "[w]e have previously held . . . that
when a defendant is represented by counsel, the court need not engage in a voir
dire on the record to establish defendant's waiver." Ibid. Indeed, we have
A-5800-17T4 11 expressly acknowledged that the trial court's "[f]ailure to address these issues,
. . . is not legal error when defendant, as here, was represented by counsel." State
v. Cusumano, 369 N.J. Super. 305, 314 (App. Div. 2004).
Moreover, because defendant was advised of his right to testify at the first
trial, the record does not support his claim that he was unaware of his right to
testify at the second trial. See State v. Bey, 161 N.J. 233, 271-75 (1999)
(rejecting a capital defendant's claim of ineffective assistance of counsel based
on his purported unawareness of his right to testify at the penalty-phase trial
where the record established that he had been advised of the right during the
guilt-phase in two prior murder trials). Further, as defendant acknowledges, the
court properly instructed the jury to disregard the prior verdict and consider
anew the evidence previously admitted at the first trial. That evidence included
defendant's testimony in which he adamantly denied possessing the silver
handgun recovered at the scene, the possession of which was an essential
element of counts eight and nine. Thus, because defendant's defense to the
charges was squarely presented to the jury, any error was harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18, 24 (1967) (holding
that, in order to conclude that federal constitutional error is harmless, a court
must find that error "harmless beyond a reasonable doubt").
A-5800-17T4 12 In Point III, defendant argues "the prosecutor engaged in improper
conduct" and "deprived [him] of a fair trial" when he "repeatedly forced
[defendant] to characterize the State Troopers as liars," and "told the jurors in
summation that Troopers do not have extra guns to plant on defendants." We
reject defendant's contention that the conduct warrants reversal.
"A prosecutor must 'conscientiously and ethically undertak[e] the difficult
task of maintaining the precarious balance between promoting justice and
achieving a conviction,' ensuring that at all times his or her 'remarks and actions
[are] consistent with his or her duty to ensure that justice is achieved.'" State v.
Jackson, 211 N.J. 394, 408 (2012) (alterations in original) (quoting State v.
Williams, 113 N.J. 393, 447-48 (1988)). "Whether particular prosecutorial
efforts can be tolerated as vigorous advocacy or must be condemned as
misconduct is often a difficult determination to make. In every instance, the
performance must be evaluated in the context of the entire trial, the issues
presented, and the general approaches employed." State v. Negron, 355 N.J.
Super. 556, 576 (App. Div. 2002).
"[P]rosecutorial misconduct is not grounds for reversal of a criminal
conviction unless the conduct was so egregious as to deprive [the] defendant of
a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999). "To justify
A-5800-17T4 13 reversal, the prosecutor's conduct must have been clearly and unmistakably
improper, and must have substantially prejudiced [the] defendant's fundamental
right to have a jury fairly evaluate the merits of his [or her] defense." State v.
Nelson, 173 N.J. 417, 460 (2002) (alterations in original) (quoting State v.
Papasavvas, 163 N.J. 565, 625 (2000)). Moreover, "a failure to make a timely
objection indicates defense counsel's belief that the prosecutor's remarks were
not prejudicial at the time they were made," State v. Josephs, 174 N.J. 44, 125
(2002), and "deprives the court of the opportunity to take curative action."
Timmendequas, 161 N.J. at 576. Thus, "[g]enerally, if no objection was made
to the improper remarks, the remarks will not be deemed prejudicial." State v.
R.B., 183 N.J. 308, 333 (2005) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
During defendant's direct examination, defense counsel placed the
truthfulness of the troopers' testimony in question by pointedly asking defendant
whether "the gun was pointing at [Chaves]," to which defendant responded that
it was not, and whether defendant even possessed a gun, to which defendant
responded that he did not. In response, the following unobjected-to questioning
occurred during cross-examination:
[Prosecutor:] So, when listening to the testimony of these officers who said that they saw the handgun in your possession are . . . you saying that they're being untruthful?
A-5800-17T4 14 [Defendant:] I [did not] have a handgun.
[Prosecutor:] I'd ask you to please answer the question. When Trooper Chave[s] said that he saw the handgun on your person, he is lying; correct?
[Defendant:] Yes.
[Prosecutor:] And, when Trooper Volpe said he saw the handgun there he's lying as well?
[Prosecutor:] And Trooper Maldonado, when he got the handgun, he's lying as well?
[Defendant:] Yes . . . I don't know.
[Prosecutor:] . . . [T]he testimony you heard today from Trooper Chave[s], that he saw a handgun on your person was a lie. Is that what [you are] saying?
[Prosecutor:] Also, Trooper Volpe, you're saying that was a lie as well?
[Prosecutor:] In other words their testimony that this handgun seen on your person and then it falling to the ground, that didn't happen?
[Defendant:] I never had the gun.
A-5800-17T4 15 In State v. Bunch, our Supreme Court found objectionable "the following
unobjected-to question [posed by the prosecutor] during [the defendant's] cross-
examination: 'So basically you want this jury to believe that everything that the
officers came in here and testified to is untrue?'" 180 N.J. 534, 549 (2004). The
Court "agree[d] with defendant that the assistant prosecutor should not have
asked defendant to assess the credibility of another witness." Ibid. See also
State v. Frisby, 174 N.J. 583, 594 (2002) (explaining that "the mere assessment
of another witness's credibility is prohibited"). Nevertheless, the Court held that
"in view of the substantial amount of evidence of defendant's guilt and the trial
court's instruction to the jury that it must determine the witnesses' credibility,
we conclude that the improper statement was not 'so egregious that it deprived
defendant of a fair trial.'" Bunch, 180 N.J. at 549 (quoting State v. Ramseur,
106 N.J. 123, 322 (1987)).
Likewise, here, given the substantial evidence of defendant's guilt and the
trial court's instruction to the jury that it must determine the witnesses'
credibility, we are satisfied that the improper questioning was not "so egregious
that it deprived defendant of a fair trial." Ramseur, 106 N.J. at 322. Indeed,
because there was no objection interposed by defense counsel, and defendant
was acquitted of possession of a weapon for an unlawful purpose and aggravated
A-5800-17T4 16 assault by pointing a firearm at a police officer, it can hardly be said that the
questions prejudiced his right to have the jury fairly evaluate the merits of his
defense. See State v. T.C., 347 N.J. Super. 219, 237-38 (App. Div. 2002)
(characterizing the prosecutor's cross-examination of defendant, asking "in
essence, whether a particular witness was 'lying' when he or she described some
action of defendant," as "inappropriate," but finding no reversible error where
there was no objection to the questioning and no showing of prejudice to
defendant).
Defendant also argues the prosecutor committed prosecutorial misconduct
by commenting during summation at the first trial that "[t]roopers conducting a
roadside detail do not have a throw away gun that they decide after a suspect
being taken into custody for DUI runs . . . to plant . . . on this individual."
Defendant asserts "[n]o evidence had been submitted in the trial to support that
comment, the prosecutor posed no questions to either of the troopers that would
have elicited a response on the subject of a 'throw away gun,'" and the "comment
was merely improper testimony by the prosecutor."
"Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented." State v. Cordero, 438 N.J. Super. 472, 489-90 (App. Div. 2014)
A-5800-17T4 17 (quoting Frost, 158 N.J. at 82). "[I]n the prosecutor's effort to see that justice is
done, the prosecutor 'should not make inaccurate legal or factual assertions
during a trial.'" State v. Bradshaw, 195 N.J. 493, 510 (2008) (quoting Frost, 158
N.J. at 85). "Rather, a prosecutor should 'confine [his or her] comments to
evidence revealed during the trial and reasonable inferences to be drawn from
that evidence.'" Ibid. (alteration in original) (quoting State v. Smith, 167 N.J.
158, 178 (2001)).
Here, we agree with defendant that there was no evidence to support the
prosecutor's comment that troopers "do not have a throw away gun . . . to plant"
on a suspect. However, once again, there was no objection to the prosecutor's
comment to indicate that the remark was deemed prejudicial. R.B., 183 N.J. at
333. Moreover, when the prosecutor's brief comment is considered in the
context of the evidence presented, defense counsel's forceful attack during
summation on the troopers' credibility, see State v. Morais, 359 N.J. Super. 123,
131 (App. Div. 2003) ("Prosecutors are permitted to respond to arguments raised
by defense counsel as long as they do not stray beyond the evidence."), and the
prosecutor's otherwise proper summation, we are convinced the comment is not
"so egregious as to [have] deprive[d] defendant[] of a fair trial," ibid., or "to
have been clearly capable of producing an unjust result." R. 2:10-2 ("Any error
A-5800-17T4 18 or omission shall be disregarded by the appellate court unless it is of such a
nature as to have been clearly capable of producing an unjust result.").
Finally, in Point IV, defendant argues "[a]ssuming arguendo that each of
the errors . . . did not alone violate fundamental constitutional rights, in the
aggregate these errors denied [defendant] a fair trial under the State and Federal
Constitutions." See State v. Jenewicz, 193 N.J. 440, 473 (2008) ("We have
recognized in the past that even when an individual error or series of errors does
not rise to reversible error, when considered in combination, their cumulative
effect can cast sufficient doubt on a verdict to require reversal."). However,
because we conclude there were no reversible errors, defendant's cumulative
error argument must fail.
Affirmed.
A-5800-17T4 19