NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2654-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARCO TULIO-ALVAREZ LOPEZ,
Defendant-Appellant. _____________________________
Argued May 15, 2018 – Decided July 17, 2018
Before Judges Reisner, Hoffman, and Mayer.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 15-05-1070.
Daniel S. Rockoff, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Daniel S. Rockoff, of counsel and on the brief).
Roberta DiBiase, Supervising Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Chief Appellate Attorney, of counsel; Roberta DiBiase, on the brief).
PER CURIAM Defendant Marco Tulio-Alvarez Lopez appeals from his
conviction for first-degree attempted murder, N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3(a)(1), third-degree possession of a knife for an
unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful
possession of a knife, N.J.S.A. 2C:39-5(d). He also appeals from
the sentence of fifteen years in prison, subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
I
Defendant was accused of stabbing his roommate (the victim),
after the victim refused to lend defendant money. The victim
suffered what the emergency room doctor described as a life-
threatening stab wound to "the left side of his lower chest." The
police found a bloody knife at the crime scene. The victim
identified defendant as the man who stabbed him. According to the
victim, after he refused to lend defendant fifty dollars, defendant
exclaimed, "that's what you want," and stabbed the victim.
Defendant then told a companion, "let's get out of here."
The landlord of the house, where defendant and the victim
shared a rented room, told the police that, right after the
incident, the victim stated that his roommate stabbed him. The
landlord identified defendant as being the victim's roommate. The
landlord also told the police that he saw defendant and another
man running from the house, shortly after the stabbing. There was
2 A-2654-15T3 no dispute that defendant was the victim's roommate, although the
landlord knew him as "Juan" and the victim knew him as "Lucas."1
The police found identification and correspondence with
defendant's correct name on it, in a suitcase on one of the beds
in the shared bedroom.
About two and a half hours after the stabbing, the police
observed defendant walk from the back of the house and duck under
the crime scene tape they had used to secure the scene. Defendant
was shirtless and covered in fresh scratches, with a deep cut on
one hand. From defendant's appearance, the police surmised that
he had been in the heavy growth of woods and sticker bushes behind
the house. The police arrested defendant and photographed him.
From the photograph, both the landlord and the victim identified
defendant as the victim's roommate.
In a statement to the police, given on the night of the
incident, defendant denied stabbing the victim and gave several
different explanations for his whereabouts that evening. First,
he claimed that he slept through the entire incident. Then he
1 Both the victim and the landlord testified that they were undocumented immigrants. According to the landlord, he rented rooms to people without checking their backgrounds or even asking for their last names. The victim testified that he first met defendant on the street a few months before the stabbing incident, and he let defendant room with him because defendant had no job, no food, and nowhere to live.
3 A-2654-15T3 stated that he was sitting in a closet thinking for a couple of
hours, before coming outside to see what was happening. He later
claimed that when the police first saw him, he was returning from
urinating outside. Defendant denied running away from the house,
and asserted that the scratches all over his torso were the result
of his work as a roofer.
However, a police canine handler, called as a defense witness,
testified that on the night of the stabbing, when the police were
still searching for the suspect, she let a police bloodhound sniff
a sock taken from defendant's suitcase in the bedroom. The dog
then tracked the scent from the house to the parking lot of an
apartment complex some distance away, before losing the scent.
The parking lot was not far from the large tract of dense woods
that extended past the back of the house.
II
On this appeal, defendant raises the following points of
argument:
POINT I: THE COURT ERRED BY DENYING THE DEFENDANT'S PRE-TRIAL MOTION FOR A WADE HEARING TO TEST THE RELIABILITY OF THE IDENTIFICATION OF THE DEFENDANT AS THE PERPETRATOR.
POINT II: THE COURT ERRED BY REFUSING TO LET THE JURY LEARN THAT THE ACCUSER HAD A BLOOD ALCOHOL CONTENT GREATER THAN .16 PERCENT, EVEN AFTER THE ACCUSER LIED AND TESTIFIED THAT HE HAD NOT BEEN INTOXICATED.
4 A-2654-15T3 POINT III: THE COURT ERRED BY REFUSING THE DEFENDANT'S REQUEST TO INSTRUCT THE JURY ON ITS DUTY TO ASSESS THE SYSTEM VARIABLES.
POINT IV: THE COURT FAILED TO INSTRUCT THE JURY ON ITS DUTY TO ASSESS WHETHER THE DEFENDANT ACTUALLY MADE ALLEGED OUT-OF-COURT STATEMENTS CITED BY THE STATE TO PROVE THE IDENTIFICATION WAS RELIABLE. (Not Raised Below)
V. THE CUMULATIVE PREJUDICIAL EFFECT OF THESE ERRORS WAS THAT NO FACTFINDER EVER CRITICALLY EVALUATED THE SYSTEM OR ESTIMATOR VARIABLES ESSENTIAL TO THE MISIDENTIFICATION DEFENSE.
VI. THE SENTENCING COURT INAPPROPRIATELY CITED ELEMENTS OF THE CRIME AS A BASIS FOR FINDING AGGRAVATING FACTORS N.J.S.A. 2C:44-1A(1)-(2).
After reviewing the record, we find no basis to disturb the
conviction or the sentence. Defendant's points IV and V are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2). We address defendant's remaining
arguments below.
III
Defendant first argues that the trial court erred in denying
his motion for a testimonial Wade2 hearing to challenge the
identifications made by the landlord and the victim. We affirm
on this issue substantially for the reasons stated by the trial
judge in her oral opinion on July 17, 2015. We add these comments.
2 United States v. Wade, 388 U.S. 218 (1967).
5 A-2654-15T3 The following information is derived from the record of the
Wade motion. During the investigation, the police learned that
the victim claimed his roommate stabbed him, and the landlord saw
the roommate running from the house shortly after the stabbing.
In the landlord's statement to the police, it was clear that,
immediately after the stabbing, the victim indicated his roommate
stabbed him. According to the landlord, the victim told him, "I'm
going to die, he stabbed me bad . . . If I knew, I wouldn't bring
him to live here." There was some question as to whether the
roommate might be using an alias. The landlord told the police
that he knew the roommate by the name "Juan Reyes."
The police showed defendant's photo to the landlord, for the
purpose of determining whether the person depicted in the photo
was the victim's roommate, regardless of the name by which the
landlord knew him. They also showed the photo to the victim, to
determine if that was his roommate, the person whom the victim had
already said was the assailant. Both men confirmed that the man
in the photo was the roommate. Under those circumstances, and for
that limited purpose, showing the witnesses only one photograph
was not improperly suggestive.
"[T]o obtain a pretrial hearing, a defendant has the initial
burden of showing some evidence of suggestiveness that could lead
to a mistaken identification." State v. Henderson, 208 N.J. 208,
6 A-2654-15T3 288 (2011) (emphasis added). That is not the case here. Showing
the witnesses defendant's photo alone, instead of as part of a
photo array, was not likely to lead to a mistaken identification.
Further, the State established that the identifications were
highly reliable. Id. at 289.
We agree with the trial judge that a testimonial Wade hearing
was not required, but even if it was error not to hold a hearing,
on this record the error was harmless. See R. 2:10-2. In the
context of this case, the defense could not demonstrate "a very
substantial likelihood of irreparable misidentification" so as to
justify suppression of the identification evidence. Henderson,
208 N.J. at 289. In fact, there was no evidence of
misidentification, i.e., no evidence that the person in the
photograph was not the victim's roommate. Defendant's arguments
on this point are without sufficient merit to warrant further
discussion. R. 2:11-3(e)(2).
IV
Next, defendant contends that the trial court erred in
excluding from evidence a medical record purporting to show that
the victim had a blood alcohol content (BAC) of about .16 when he
was admitted to the hospital. Defendant contends that the blood
test results would have contradicted the victim's testimony that
he had not been drinking on the night he was stabbed and would
7 A-2654-15T3 have cast doubt on his ability to perceive the events of that
evening.
The issue arose in this context. The State called Dr. Knight
as a fact and expert witness, to testify about the treatment he
provided after the victim was brought to the emergency room. Dr.
Knight's direct testimony was limited to describing the victim's
stab wound, the danger it presented to his life if not treated,
and the surgery Dr. Knight performed. According to Dr. Knight,
as soon as he saw that the victim had a deep stab wound right
under the rib cage, with body fat hanging out of it, he ordered
the victim into surgery. He began operating about half an hour
after the victim arrived at the ER.
On cross-examination, defense counsel asked Dr. Knight if it
was important to know what substances a patient had in his system
when brought to the emergency room. Dr. Knight responded that it
was not a factor if there was a need for emergency surgery. In
response to defense counsel's question, he confirmed that a blood
test was done the night the victim was admitted to the hospital.
However, in response to counsel's question about the victim's BAC,
Dr. Knight stated that he had no recollection what the victim's
BAC was. At that point, the prosecutor objected to further
questioning about the blood test, absent a proper foundation.
8 A-2654-15T3 The judge permitted defense counsel to ask additional
foundational questions. However, she ultimately declined to admit
the blood test in evidence. The judge reasoned that the document
had not been properly authenticated as a business record, there
was no testimony from the person who took the blood sample, and
Dr. Knight did not consider or use the document as part of his
treatment or diagnosis of the patient. The judge reasoned that
"it wasn't part of his diagnosis, it wasn't part of the treatment.
[The test results] didn't even matter to him." In a later
supplemental ruling, the judge also concluded that there was an
insufficient foundation from which she could conclude that the
substantive content of the document was trustworthy.
We review the judge's evidentiary ruling for abuse of
discretion. State v. Kuropchak, 221 N.J. 368, 385 (2015). We
find no abuse of discretion in the judge's decision that the
document was not properly authenticated and was otherwise
inadmissible without a further foundation. We agree with the
judge's thorough statement of reasons placed on the record in
denying the defense motion for a new trial on this issue.3
3 The State accurately notes that the blood test report in defendant's appendix actually lists the names of two different patients on the same pages – the victim and a person named "Quigley." In fact, Quigley's name, age and date of birth appear on the first page under "Physician Documentation." This raises a
9 A-2654-15T3 Defendant now argues that he should have been allowed to
"refresh" Dr. Knight's recollection by showing him the blood test
report. See N.J.R.E. 612. However, N.J.R.E. 612 is not a vehicle
for placing before the jury information that would otherwise be
inadmissible. See State v. Caraballo, 330 N.J. Super. 545, 557
(App. Div. 2000). Dr. Knight did not authenticate the blood test
as a business record. He did not know whether the blood was drawn
in the ambulance or at the hospital. He testified that he did not
rely on the blood test result and it was irrelevant to his
treatment or diagnosis of the victim. Under those circumstances,
an attempt to have the witness read from the report, in order to
get the information before the jury for its truth, was improper.
Finally, even if the court erred in excluding the document,
the error was harmless, if the report was offered to show that the
victim was not truthful when he stated he had not been drinking.
By itself, that would not have changed the outcome of the trial
and thus its exclusion had no clear capacity to produce an unjust
result. See R. 2:10-2. As the trial judge noted, if the true
purpose of placing the record before the jury was to create an
inference that the victim was too intoxicated to identify an
significant issue as to the authenticity, accuracy, and reliability of the document as a purported report of the victim's blood test.
10 A-2654-15T3 assailant, the defense would have needed an expert to testify
about the medical significance of a .16 BAC. Otherwise, the jury
would be left to speculate about its significance.
V
Defendant next argues that the trial court erred in failing
to give certain portions of the model charge concerning
identification. Model Jury Charges (Criminal), "Identification:
In-Court and Out-of-Court Identifications" (rev. June 4, 2007).
The judge read the jury ten pages of instructions about
identification, and the pertinent factors to be considered. We
conclude that the instructions she provided were sufficient in the
context of this case. We agree with the judge that it was not
necessary to instruct the jury about system variables, including
the absence of a photo array and the normally-required procedural
safeguards attendant on the identification process.
Nonetheless, even if it was error to omit the additional
instructions defendant claims the court should have given, the
error was harmless beyond a reasonable doubt. The police asked
the witnesses whether the person in the photo was the victim's
roommate, a person with whom the witnesses were familiar but whose
true name they might not know. The likelihood that the witnesses
would mis-identify the person in the photo as being the roommate,
when he was not, was minimal.
11 A-2654-15T3 More importantly, this case was not about observational mis-
identification. There was never an issue about whether the victim
could have been mistaken about whether his roommate stabbed him,
or whether someone other than his roommate stabbed him. The
stabbing took place in a lighted room, and was committed by a
person who was standing right in front of the victim and was
speaking to him. Moreover, the roommate was someone the victim
had known for months and with whom he had shared a bedroom for
months.
The defense theory was that, for some unexplained reason, the
victim intentionally accused the wrong person, or the landlord
misunderstood the victim's initial statement about who stabbed him
and the police then focused on the wrong suspect. At no time did
the defense argue that the victim mistakenly perceived or
mistakenly remembered that defendant stabbed him when in fact
someone else was the assailant. And the record would not support
such an inference.
VI
Finally, we address defendant's sentencing arguments. After
determining and weighing the mitigating and aggravating factors,
the trial court sentenced defendant to fifteen years in prison,
subject to NERA, for first-degree attempted murder, and merged the
other two offenses into the attempted murder conviction. We owe
12 A-2654-15T3 deference to the trial court's sentencing decision, and we will
not substitute our judgment for that of the sentencing court.
State v. Lawless, 214 N.J. 594, 606 (2013).
Defendant argues that in finding aggravating factors one and
two, the trial court double counted elements of the attempted
murder offense. See State v. Fuentes, 217 N.J. 57, 74-75 (2014)
(facts establishing elements of a crime should not also be
considered as aggravating factors in sentencing).
Factor one directs the court to consider the nature and
circumstances of the offense and whether it was committed in an
especially heinous, cruel or depraved manner. N.J.S.A. 2C:44-
1(a)(1). The judge considered that the victim had taken defendant
in and given him food and shelter when he was destitute, and in
return, defendant stabbed the victim when he would not give
defendant money. The judge also found that the crime was committed
in a depraved manner because it demonstrated an intent to inflict
pain and suffering in addition to death. The judge also found
that defendant stabbed the victim in the abdomen and "left him to
die" and the victim "would have died" but for emergency surgery.
Defendant argues that the judge double counted the element
of attempted murder, that defendant "does or omits to do anything
with the purpose of" causing the victim's death. See N.J.S.A.
2C:5-1(a)(2). We disagree. Viewed in context, we do not find
13 A-2654-15T3 that the judge's comments about leaving the victim to die
constitute double counting of an element of attempted murder. It
was part of the judge's overall description of defendant's
particularly heinous and cruel course of conduct in inflicting
maximum pain and suffering on the victim, and his cold-hearted
treatment of a victim who had tried to help him. See Fuentes, 217
N.J. at 75; State v. Soto, 340 N.J. Super. 47, 54-55 (App. Div.
2001).
Factor two includes the gravity and seriousness of the harm
inflicted on the victim. N.J.S.A. 2C:44-1(a)(2). In finding that
factor, the trial court considered the nature of the victim's
injuries "that required emergency lifesaving efforts and surgery."
The judge considered that the victim was "stabbed in the abdomen"
and the wound affected a number of "major organs." Those findings
were consistent with Dr. Knight's testimony about the way the
victim was stabbed, below the rib cage with an upward trajectory
that affected the diaphragm, stomach, and lungs. Defendant argues
that these findings constituted double counting of the element of
acting with the purpose to cause the victim's death, and doing or
omitting to do anything to cause the death. Again, we disagree.
Aggravating factor two "compels 'a pragmatic assessment of
the totality of harm inflicted by the offender on the victim.'"
Lawless, 214 N.J. at 611 (quoting State v. Kromphold, 162 N.J.
14 A-2654-15T3 345, 358 (2000)). Under this rationale, "defendants who purposely
or recklessly inflict substantial harm receive more severe
sentences than other defendants." Kromphold, 162 N.J. at 358.
We have recognized that "[t]he extent of the injuries, which
exceed the statutory minimum for the offense, may be considered
as aggravating" for purposes of sentencing. State v. Mara, 253
N.J. Super. 204, 214 (App. Div. 1992). Moreover, "a conviction
for attempted murder does not require as one of its elements that
any injury be inflicted." See State v. Noble, 398 N.J. Super.
574, 599 (App. Div. 2008). Thus, a defendant who succeeds in
almost killing a victim, by inflicting extensive injury, may be
punished more harshly than a defendant who attempts to kill the
victim but does not succeed in inflicting a serious wound. On
this record, the trial court did not double count in finding
aggravating factor two.
Affirmed.
15 A-2654-15T3