NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5023-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAMON MARTINEZ,
Defendant-Appellant. ___________________________
Argued October 30, 2019 — Decided November 21, 2019
Before Judges Koblitz, Whipple and Mawla.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 15-06-0548.
Steven E. Braun argued the cause for appellant.
Ali Y. Ozbek, Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney; Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Ramon Martinez appeals from a judgment of conviction for
two counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A.
2C:11-3(a); two counts of third-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(2); and one count of third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d). He also challenges his sentence. We affirm.
The following facts were adduced at trial. Late one evening in September
2014, Alex Mena decided to shoot pool with Nicholas Garcia, Daniel Aguilar,
and Joel "Aranita" Orton at a liquor store and bar in Paterson. When they
arrived, Mena sat at the counter and ordered a beer while awaiting his turn to
play pool. While Mena waited, Aguilar played a game of pool against defendant,
which led to an argument about the rules of the game. Defendant lost the game.
Mena and Aguilar did not know defendant prior to playing against him.
When Mena played defendant, a second argument ensued, also regarding
the rules. As the argument continued, Mena told defendant he "was there just
to have fun, to play pool, not to look for any type of problems." The bar owner
noticed the argument was escalating and stopped the game.
Afterwards, Mena joined Aguilar at the bar. Defendant then approached
Mena and Aguilar and began insulting Aguilar and challenging him to a fight.
Aguilar and Mena decided to leave, however, on their way out, Orlando Cordero,
A-5023-17T1 2 one of defendant's friends, punched Aguilar in the back of the head. Aguilar
went outside to fight Cordero, and defendant also left the bar and ran towards a
gas station across the street. Defendant returned and approached Aguilar. Mena
attempted to defend Aguilar. Defendant then approached Mena who testified he
attempted to "defend[] [him]self with [his foot.]"
Defendant and Aguilar then fought. As defendant approached, Aguilar
testified he "grabbed [defendant] and knocked him to the floor." While
defendant and Aguilar fought, Mena testified he felt his shirt was wet. He lifted
his shirt, touched his stomach and "[saw] that [his] intestines [were] hanging
out." He had been stabbed in the torso in three places. Mena ran away from the
scene. Aguilar also noticed that he "was full of blood" and was stabbed in two
places in the torso and once in the left leg.
Garcia drove Mena and Aguilar to St. Joseph's hospital. Garcia testified
he saw defendant fighting Mena and then Aguilar. He then saw Mena holding
his stomach as if he was injured. At the hospital, both victims were taken to the
trauma unit and underwent emergency surgery. Five months later, Aguilar
underwent a second surgery to resect a portion of his intestine due to the earlier
injury. He testified he continues to suffer from back pain and "pain in [his]
intestines."
A-5023-17T1 3 Both victims were shown photo arrays and identified defendant as the
person who stabbed them.
On appeal, defendant raises the following arguments:
POINT I – THE TRIAL COURT FAILED TO PROVIDE A PASSION/PROVOCATION INSTRUCTION IN REGARD TO ATTEMPTED MURDER (NOT RAISED BELOW).
POINT II – DEFENDANT WAS NOT PROVIDED THE OPTION OF ELECTING WHETHER HE WANTED A JURY INSTRUCTION REGARDING HIS RIGHT TO REMAIN SILENT (NOT RAISED BELOW).
POINT III – THE COURT SHOULD HAVE INSTRUCTED AS TO SIMPLE ASSAULT (NOT RAISED BELOW).
POINT IV – PROSECUTORIAL MISCONDUCT OCCURRED WHEN THE TRIAL PROSECUTOR ENGAGED IN DISCOURSE WITH ONE OF THE JURORS DURING SUMMATION.
POINT V – THE TRIAL PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT WHEN HE COMMENTED ON MATTERS NOT IN EVIDENCE, AND HIS COMMENTS INFLAMED THE JURY.
POINT VI – ADMITTING THE PHOTOGRAPH OF AGUILAR'S INFECTION WAS INFLAMMATORY AND PREJUDICIAL TO DEFENDANT, THEREBY REQUIRING REVERSAL OF THE CONVICTION.
A-5023-17T1 4 POINT VII – THE TRIAL COURT SHOULD HAVE GRANTED THE DEFENSE MOTION AND ORDERED A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND DUE TO THE PREJUDICE TO DEFENDANT CAUSED BY THE USE OF THE TERMS "STABBING" AND "VICTIMS."
POINT VIII – DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE NEW JERSEY CONSTITUTION.
POINT IX – THE CUMULATIVE EFFECT OF THE ERRORS COMMITTED AT TRIAL REQUIRE REVERSAL OF THE CONVICTION.
POINT X – THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
I.
Defendant argues the trial judge failed to sua sponte instruct the jury
regarding passion provocation on the attempted murder counts, or the lesser-
included charge of simple assault. He also argues the judge erred by charging
the jury regarding his right to remain silent without giving him the option to
waive the charge.
"[T]he court has an 'independent duty . . . to ensure that the jurors receive
accurate instructions on the law as it pertains to the facts and issues of each case,
A-5023-17T1 5 irrespective of the particular language suggested by either party.'" State v.
Baum, 224 N.J. 147, 159 (2016) (alteration in original) (quoting State v.
Reddish, 181 N.J. 553, 613 (2004)). When a defendant fails to object to an error
regarding jury charges, we review for plain error. State v. Funderburg, 225 N.J.
66, 79 (2016). "Under that standard, we disregard any alleged error 'unless it is
of such a nature as to have been clearly capable of producing an unjust result.'"
Ibid. (quoting R. 2:10-2). "The mere possibility of an unjust result is not enough.
To warrant reversal . . . an error at trial must be sufficient to raise 'a reasonable
doubt . . . as to whether the error led the jury to a result it otherwise might not
have reached.'" Ibid. (citation omitted) (quoting State v. Jenkins, 178 N.J. 347,
361 (2004)).
N.J.S.A. 2C:1-8(e) states "[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." "Thus, 'to justify a lesser included offense
instruction, a rational basis must exist in the evidence for a jury to acquit the
defendant of the greater offense as well as to convict the defendant of the lesser,
unindicted offense.'" Funderburg, 225 N.J. at 81 (quoting State v. Savage, 172
N.J. 374, 396 (2002)). However, "[w]hen the parties to a criminal proceeding
do not request that a lesser-included offense . . . be charged, the charge should
A-5023-17T1 6 be delivered to the jury only when there is 'obvious record support for such [a]
charge. . . .'" Ibid. (second alteration in original) (quoting State v. Powell, 84
N.J. 305, 319 (1980)).
"A trial court should deliver the instruction sua sponte 'only where the
facts in evidence "clearly indicate" the appropriateness of that charge.'" Ibid.
(quoting Savage, 172 N.J. at 397). The trial court "need not 'scour the statutes
to determine if there are some uncharged offenses of which the defendant may
be guilty.'" Ibid. (quoting State v. Brent, 137 N.J. 107, 118 (1994)).
Our Supreme Court held "passion/provocation manslaughter is considered
a lesser-included offense of murder: the offense contains all the elements of
murder except that the presence of reasonable provocation, coupled with
defendant's impassioned actions, establish a lesser culpability." State v.
Robinson, 136 N.J. 476, 482 (1994). Attempted passion/provocation
manslaughter consists of four elements: "the provocation must be adequate; the
defendant must not have had time to cool off between the provocation and the
slaying; the provocation must have actually impassioned the defendant; and the
defendant must not have actually cooled off before the slaying." Funderburg,
225 N.J. at 80 (alterations in original) (quoting State v. Mauricio, 117 N.J. 402,
A-5023-17T1 7 411 (1990)). "The first two criteria are objective, and the latter two are
subjective." Ibid. (citing Mauricio, 117 N.J. at 411).
Thus, "[f]or a trial court to be required to charge a jury sua sponte on
attempted passion/provocation manslaughter, the court 'must find first that the
two objective elements of [the offense] are clearly indicated by the evidence.'"
Id. at 82 (second alteration in original) (quoting Robinson, 136 N.J. at 491). "If
they are, the two subjective elements should 'almost always be left for the jury.'"
Ibid. (quoting Robinson, 136 N.J. at 490).
"To satisfy the first element of attempted passion/provocation
manslaughter, a jury must conclude that a reasonable person in the defendant's
position would have been provoked sufficiently to 'arouse the passions of an
ordinary man beyond the power of his control.'" Id. at 80 (quoting State v. King,
37 N.J. 285, 301-02 (1962)). Thus, "the judge must determine whether a
reasonable fact-finder could conclude that the loss of self-control was a
reasonable reaction." State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001).
Defendant argues he was entitled to a passion/provocation jury instruction
because the trial testimony revealed Mena tried to kick defendant and Aguilar ,
"grabbed defendant, lifted him up, and threw him onto the ground." We
disagree.
A-5023-17T1 8 Mena testified that when everyone exited the bar, defendant ran to a gas
station across the street before returning to the fight. Mena told defendant not
to hit Aguilar, at which point, defendant began approaching Mena instead. After
reviewing video footage of the fight, Mena testified as follows:
Q. Now having seen that, . . . did you attempt to strike [defendant]?
A. When I told him not to hit [Aguilar] . . . [h]e came towards me, I defended myself with my foot. We . . . started to have a struggle, we started to fight.
Q. Okay, . . . when you came at [defendant] . . . did you actually hit him with your foot?
A. I don't think so. I really don't.
[(emphasis added).]
Mena's testimony demonstrated the attempt to kick defendant was an act of self-
defense.
Similarly, the testimony that Aguilar picked defendant up and threw him
to the ground demonstrates an act of self-defense because defendant was
approaching Aguilar to fight him. Both Mena and Aguilar testified Aguilar
grabbed defendant's foot to "protect[] himself" after defendant began to
approach him, and Aguilar testified specifically that he "reacted in order to
A-5023-17T1 9 defend [him]self." Even defendant's friend, Cordero, testified defendant ended
up on the ground after defendant "came in to kick one of [the victims.]"
As a general proposition, "[i]f the defendant creates the situation that
causes the passion/provocation it will not reduce murder to manslaughter."
Cannel, New Jersey Criminal Code Annotated, cmt. 4 on N.J.S.A. 2C:11-4
(2019). Furthermore, "the passion of an assailant aroused as the result of injuries
inflicted by his victim attempting to defend himself is, as a matter of law,
insufficient to mitigate the assailant's culpability for the resulting [attempted]
homicide." State v. Pasterick, 285 N.J. Super. 607, 617 (App. Div. 1995). The
credible evidence proved defendant was the provocateur and the victims'
reactions were in self-defense. A lesser-included offense charge on attempted
passion/provocation manslaughter was not "clearly indicated."
There was also no basis for the trial judge to sua sponte charge the jury on
simple assault, under N.J.S.A. 2C:12-1(a)(1) and N.J.S.A. 2C:12-1(a)(2), as a
lesser-included offense of aggravated assault. "Simple assault is the least
serious of the [N.J.S.A.] 2C:12-1 offenses." Cannel, New Jersey Criminal Code
Annotated, cmt. 5 on N.J.S.A. 2C:12-1 (2019). Simple assault occurs when a
person "[n]egligently," rather than purposely or knowingly, "causes bodily
A-5023-17T1 10 injury to another with a deadly weapon." N.J.S.A. 2C:12-1(a)(2). Aggravated
assault under N.J.S.A. 2C:12-1(b)(2) excludes negligent acts.
Defense counsel expressly advised the judge he did not seek the
instruction for simple assault. Moreover, the State called Dr. Mark Ingram, who
treated Mena and Aguilar on the night of the incident. Dr. Ingram testified Mena
had "[l]ow blood pressure, lack of blood flow to the brain and organs, [and was]
losing consciousness" when he arrived at the hospital. He stated Mena was
diagnosed with "multiple stab wounds to the abdomen and was in hemorrhagic
shock [and required emergency surgery] [t]o stop the bleeding and save his life."
During the surgery, Dr. Ingram observed a large quantity of blood in Mena's
abdominal cavity and noticed his "small intestine was lacerated and the blood
supply to the small intestine was also lacerated." Dr. Ingram also observed
extensive injury to several of Mena's organs caused by the stab wounds.
Aguilar was diagnosed with a stab wound to the abdomen. Dr. Ingram
testified he observed nearly a pint of blood inside Aguilar's abdomen during the
surgery, a perforation of Aguilar's stomach and diaphragm, and a laceration of
the fatty tissue covering the peritoneal cavity. According to Dr. Ingram, the
stabbing also caused Aguilar's injuries and, if not treated for his injuries, "[h]e
would have bled to death and . . . died."
A-5023-17T1 11 The evidence clearly proved Mena and Aguilar's injuries were the result
of a stabbing caused by a deadly weapon. No evidence was presented to
establish defendant acted negligently. The record does not support defendant's
argument the jury would acquit him of the aggravated assault charge. The
evidence did not support charging "the least serious offense" under N.J.S.A.
2C:12-1(a) or (2).
Although defendant did not object at trial, he now argues the judge erred
by instructing the jury on defendant's right to remain silent. He argues defense
counsel should have had the opportunity to request the jury instruction or to ask
it not be provided.
"The no-adverse-inference jury instruction, or Carter1 charge, is grounded
on the Fifth Amendment privilege against self-incrimination." State v.
Camacho, 218 N.J. 533, 542 (2014). Accordingly, our Supreme Court
"consistently mandated the trial court's use of the Carter instruction when it is
requested by a defendant." Id. at 546. We review errors relating to the charge
as "a type of error that concerns the evidentiary value the jury may give to a
defendant's election not to testify on his or her own behalf." Id. at 551.
1 Carter v. Kentucky, 450 U.S. 288 (1981). A-5023-17T1 12 Here, defendant elected not to testify. The judge advised him on three
occasions that if he decided not to testify, he would give the jury a no-adverse-
inference charge. Defendant acknowledged he understood his right to remain
silent and the instructions the judge would give to the jury if he exercised that
right.
The trial judge instructed the jury as follows:
As you know, [defendant] elected not to testify at trial. . . . You must not consider for any purpose or in any manner in arriving at your verdict the fact that [defendant] did not testify. The fact should not enter into your deliberations or discussions in any manner at any time. The defendant is entitled to have the jury consider all of the evidence presented at trial. He is presumed innocent whether or not he chooses to testify.
Defendant did not object to the charge.
We reject defendant's argument that the judge was required to obtain his
consent to charge the jury regarding defendant's right not to testify. "Generally,
a defendant waives the right to contest an instruction on appeal if he does not
object to the instructions as required by Rule 1:7-2." State v. Adams, 194 N.J.
186, 206-07 (2008). "Where there is a failure to object, it may be presumed that
the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35
(App. Div. 2003); see also State v. White, 326 N.J. Super. 304, 315 (App. Div.
1999).
A-5023-17T1 13 In State v. McNeil, we held a defendant "ha[s] no constitutional right to
resist the [no-adverse-inference] instruction." 164 N.J. Super. 27, 31 (App. Div.
1978); see also State v. Lynch, 177 N.J. Super. 107, 115 (App. Div. 1981)
(concluding when a defendant did not have the opportunity to consent to the
instruction, "inclusion of the charge does not violate [the] defendant's
constitutional rights."). For these reasons, the jury instructions were not a basis
for reversal.
II.
Defendant argues the prosecutor engaged in misconduct when he spoke
directly with a juror and argued facts not in evidence during summation, by
referencing the victims' families, who did not testify at trial. The prosecutor's
improper comments did not constitute reversible error.
"'[P]rosecutorial misconduct is not grounds for reversal of a criminal
conviction unless the conduct was so egregious as to deprive defendant of a fair
trial.'" State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v.
Papasavvas (I), 163 N.J. 565, 625 (2000)). "Thus, '[t]o justify reversal, the
prosecutor's conduct must have been "clearly and unmistakably improper," and
must have substantially prejudiced defendant's fundamental right to have a jury
A-5023-17T1 14 fairly evaluate the merits of his defense.'" Id. at 438 (alteration in original)
(quoting Papasavvas, 163 N.J. at 625).
An appellate court, in reviewing the trial record to determine whether the conduct of the prosecutor exceeded these bounds, must consider several factors, including whether "timely and proper objections" were raised, whether the offending remarks "were withdrawn promptly," and whether the trial court struck the remarks and provided appropriate instructions to the jury. Additionally, an appellate court will consider whether the offending remarks were prompted by comments in the summation of defense counsel. If, after completing such a review, it is apparent to the appellate court that the remarks were sufficiently egregious, a new trial is appropriate, even in the face of overwhelming evidence that a defendant may, in fact, be guilty. In contrast, if the prosecutorial remarks were not "so egregious that [they] deprived the defendant of a fair trial[,]" reversal is inappropriate.
[State v. Smith, 212 N.J. 365, 403-04 (2012) (alterations in original) (citations omitted) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).]
Here, the prosecutor played the video of the fight for the jury during his
summation, when the following colloquy ensued:
[PROSECUTOR:] Watch where [defendant] is swinging the knife or swinging whatever he has right there. Pay attention. Where is he swinging? Where is he swinging, ladies and gentlemen? You saw that? You see it again? You saw it? Did you catch it?
[JUROR:] Can you do it again? I didn't see it.
A-5023-17T1 15 [PROSECUTOR:] I'll back it up, I'll back it up a little bit. You know what? I'll do you one better. There's one, there it is again. Did you catch it?
[JUROR:] No.
[PROSECUTOR:] I'll back it up again.
Immediately afterwards, defense counsel objected, and during a sidebar
conversation argued the prosecutor was "engaging the jury [in] questioning and
answering." The following exchange occurred during sidebar:
THE COURT: I think it's inappropriate. You should simply go right through without any comment because my instructions will be to them you can't rely on anything more, this is just not evidence, so they should not be focusing on this . . .
[PROSECUTOR:] Yes.
[DEFENSE COUNSEL:] Now I want to reserve my time for surrebuttal because of what occurred.
[PROSECUTOR:] Surrebuttal?
THE COURT: No, I think that the jurors don't even know that there was an objection.
Later in his summation the prosecutor challenged the character witnesses
who testified on defendant's behalf as follows:
Now, there's a couple of things that came up in terms of – in terms of the people that talked about [defendant]. . . .
A-5023-17T1 16 Listen, we all grab [twenty] of our best friends, [twenty] of your cousins and relatives, I guarantee you they're all going to say the same thing about you, that you're one great guy, that you're one great lady, that you're a hell of a person. Why? Because that's how they know you because when you're with your friends and your family you're going to be good to them. You're not going to treat your friends and family wrong, so of course they're going to be here and every one of their experiences they've ever had with [defendant] is going to be great because that's all they ever see from him because he's their friend . . . but you know who would come in here and not have similar sentiments about [defendant]? Alex Mena's family, Alex Mena's wife and kids. They'll come in here and tell you a different story. They'll tell you — they'll paint a different picture about [defendant]. They'll tell you about how this person almost took the life of their loved one. That's what they'll tell you. Same thing for Danny Aguilar. His friends and family will come in and tell you the same thing, that they almost lost their friend.
Following these comments, defense counsel objected and at sidebar stated
"you can't argue to a jury speculative or conjectural testimony." The trial judge
agreed and gave the jury the following curative instruction:
Ladies and gentlemen, with regard to [the prosecutor's] comment as to what a family member of the victims would feel about a defendant, that I have stricken from the record. That should not go into, in any shape or form, . . . your discussions and I'm going to also remind you in my general instructions . . . that any comments by either [c]ounsel during openings or
A-5023-17T1 17 closings are not evidence, they are simply arguments, all right?
Our Supreme Court has held "[t]o address jurors individually or by name
is generally disapproved and correctly so." Aponte v. State, 30 N.J. 441, 448
(1959); see also Morais, 359 N.J. Super. at 131 (finding reference to a "juror
individually by name, experience[,] or background" improper). However, "a
'fleeting and isolated' remark is not grounds for reversal." State v. Gorthy, 226
N.J. 516, 540 (2016) (quoting State v. Watson, 224 N.J. Super. 354, 362 (App.
Div. 1988)).
Here, we note it was not the prosecutor who commenced the interaction
with the juror, but the juror who made a statement, which prompted the
prosecutor's improper response. Regardless, the record does not reveal how the
prosecutor's fleeting comment that he would "back . . . up" the video prejudiced
or deprived defendant of a fair trial.
Courts consistently recognize "prosecutors are afforded considerable
leeway in their closing arguments," however "prosecutors should not make
inaccurate legal or factual assertions during a trial and . . . they must confine
their comments to evidence revealed during the trial and reasonable inferences
to be drawn from that evidence." Smith, 167 N.J. at 177-78.
A-5023-17T1 18 Here, the prosecutor undisputedly erred when he commented on facts not
in evidence. However, defense counsel promptly objected to the prosecutor's
comments, and the trial judge struck the prosecutor's comments and issued a
curative instruction to the jury, advising it could not consider the prosecutor's
comments regarding the victims' families. The timely objection and curative
instruction "cured any potential harm caused by [the] speculative remarks."
State v. McGuire, 419 N.J. Super. 88, 149 (App. Div. 2011).
III.
Defendant argues the State admitted a photograph of Aguilar's injuries,
which also showed the wound was infected. He argues the image of the infection
was irrelevant and inflamed the jury. Defendant argues his motion for a new
trial should have been granted because (1) the verdict was against the weight of
the evidence and (2) the terms "stabbing" and "victims" were used, implying his
guilt and depriving him of a fair trial. He asserts he is entitled to a new trial
because Dr. Ingram had no personal knowledge of how the victims were injured,
yet the State improperly used his testimony to establish "an evidentiary nexus
between the issue of causation and whether defendant caused the medical
injuries [Dr. Ingram] observed."
A-5023-17T1 19 "[I]n reviewing a trial court's evidential ruling, an appellate court is
limited to examining the decision for abuse of discretion." State v. Kuropchak,
221 N.J. 368, 385 (2015) (quoting Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)).
Under that standard, "[c]onsiderable latitude is afforded a trial court in
determining whether to admit evidence," and "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.
(alteration in original) (quoting State v. Feaster, 156 N.J. 1, 82 (1998); State v.
Marrero, 148 N.J. 469, 484 (1997)). To exclude photographic evidence on
grounds of prejudice, "the danger of undue prejudice must outweigh probative
value so as to divert jurors 'from a reasonable and fair evaluation of the basic
issue of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991) (quoting
State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div. 1988)).
Over defendant's objection, the trial judge concluded the photographic
evidence was probative because it showed the extent of Aguilar's injuries and
was relevant to determining whether he suffered bodily injury by a deadly
weapon, an element of aggravated assault, N.J.S.A. 2C:12-1(b)(2). The trial
judge did not abuse his discretion.
Rule 3:20-1, states:
A-5023-17T1 20 The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
"[A] motion for a new trial is addressed to the sound discretion of the trial
judge, and the exercise of that discretion will not be interfered with on appeal
unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137
(App. Div. 2000). Our review "is limited to a determination of 'whether the
findings made by the trial court could reasonably have been reached on
sufficient credible evidence in the record.'" State v. Brooks, 366 N.J. Super.
447, 454 (App. Div. 2004) (quoting Russo, 333 N.J. Super. at 137).
Defendant argues the trial judge committed reversible error in allowing
the prosecutor and witnesses to use the terms "victims" and "stabbing" when
describing the incident. He argues these terms were highly prejudicial and
tainted the presumption of innocence by placing an "unfair suggestion of guilt
. . . into the minds of the jurors."
The trial judge addressed this argument in evaluating defendant's motion
for a new trial and concluded as follows:
A-5023-17T1 21 The State submits and the [c]ourt concurs that such an argument has no merit. . . . . There is no basis to suggest that the wounds that both victims suffered were self-inflicted. On the contrary, it is undisputed that both . . . Aguilar and Mena were stabbed. As such, referring to Aguilar and Mena as victims and referring to the incident as stabbing was appropriate and in no way contaminated the jury from the presumption of innocence. Throughout the trial it was known and undisputed that Aguilar and Mena were stabbed.
The issue which needed to be addressed was whether the person who stabbed them was the defendant. At no point during the trial [was there] a deviation from the fundamental principle of the criminal justice system that the State needs to prove and has the ultimate burden to prove beyond a reasonable doubt that the victims were stabbed and that the defendant was the one that did the stabbing. Referring to Mena and Aguilar as victims did not change the burden that was placed on the State nor did referring [to] the incident as a stabbing shift that burden.
....
In short, the [c]ourt is clearly convinced that any reference during the trial to either Aguilar or Mena or both as victim or victims or the injuries they suffered as a result of stabbing was appropriate and not prejudicial at all. It neither contaminated the jury in any manner nor shifted the burden from the State to the defendant. Furthermore, its use did not result in defendant suffering a manifest denial of justice by the jury's verdict.
The trial judge also rejected defendant's argument regarding Dr. Ingram's
testimony. The judge stated:
A-5023-17T1 22 The [c]ourt finds this argument is without merit. The defense incorrectly defines the testimony presented by Dr. Ingram in this matter and the manner in which it was used by the State.
Dr. Ingram was called in as an expert witness in this trial to identify whether the injuries suffered by the victims could rise to the level of being serious bodily injury. Dr. Ingram's testimony cannot be characterized as expert testimony establishing the identity of an individual who had committed the stabbing upon Aguilar and Mena. Instead, Dr. Ingram's testimony focused on the injuries suffered by the victims.
The [c]ourt finds that the testimony provided by Dr. Ingram was utilized by the State to satisfy the injury element of the charges against the defendant. . . . There is nothing in the evidence to suggest that Dr. Ingram's testimony was used to identify the actor who caused these injuries. In fact, during cross-examination when defendant's former counsel asked Dr. Ingram whether he knew who caused the injuries Dr. Ingram responded that he did not.
The trial judge did not abuse his discretion in denying the motion for a
new trial. We affirm for the reasons expressed in the judge's comprehensive and
well-reasoned decision.
IV.
Defendant argues he was denied effective assistance of trial counsel
because counsel: (1) failed to request the lesser-included simple assault charge;
A-5023-17T1 23 (2) failed to file a motion in limine to prevent the prosecution from using the
words "stabbing," "knife," and "victims;" (3) wanted to withdraw because he
was not being paid; and (4) failed to bar Dr. Ingram's testimony. Defendant
asserts these cumulative errors justify reversal.
"'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.
A defendant seeking to vacate a conviction on the grounds of ineffective
assistance of counsel must show that: (1) counsel's performance was deficient;
and (2) the deficiency prejudiced the defense. State v. Nash, 212 N.J. 518, 542
(2013). "A deficient performance means that 'counsel made errors so serious
that counsel was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment.'" Ibid. (quoting Strickland v. Washington, 466 U.S. 668,
687 (1984)). Moreover, proof of prejudice must create "a reasonable probability
A-5023-17T1 24 that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694.
Judicial scrutiny of counsel's performance is highly deferential.
"[C]ounsel is strongly presumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable professional judgment."
Id. at 690. The strong presumption counsel exercised sound trial strategy is
grounded in "the inherent difficulties in evaluating a defense counsel's tactical
decisions from his or her perspective during trial. . . ." State v. Arthur, 184 N.J.
307, 319 (2005).
We do not address defendant's claim defense counsel and defendant's
family were at odds because of defense counsel's desire to withdraw from the
case due to lack of payment. There is no evidence in the record to enable us to
effectively evaluate this claim and it is better presented on a petition for post-
conviction relief.
We reject defendant's claim that the use of the terms "knife," "victim,"
and "stabbing" during the trial was evidence of ineffective assistance of counsel.
The credible evidence presented at trial demonstrated Mena and Aguilar were
the victims of a stabbing. Moreover, defense counsel did object to the use of
A-5023-17T1 25 the words "victim" and "stabbing" at trial, his objection was overruled, and as
we noted, the trial judge's decision was not an abuse of discretion.
Defense counsel was not ineffective for failing to exclude Dr. Ingram's
testimony. Although counsel initially objected, but then withdrew the objection,
the doctor's testimony was entirely appropriate expert testimony explaining the
nature of the victims' injuries. Moreover, the trial judge explained why the
failure to move to exclude the doctor's testimony prior to trial did not constitute
ineffective assistance of counsel. He stated:
The [c]ourt . . . characterizes defense counsel's decision to bring up the substance of these motions during trial rather than pre-trial as merely trial strategy. Even if these motions were successful[,] such limiting of testimony or the use of the phrase would not have changed the ultimate outcome of the trial based on the other evidence that was provided in this case.
The jury would still have been able to see both videos . . . [showing] the defendant walking to his car and returning. What the State would have been permitted to argue was the knife that was used in this case. [The jury] would have seen the defendant thrust at both victims in the area where they were found to have been stabbed.
Also, the jury would have heard the testimony of Dr. Ingram describing the steps he took to repair the damage that was caused. Lastly, they would have heard
A-5023-17T1 26 Dr. Ingram opine that but for his intervention both victims would have died.
With the totality of the evidence presented at trial, even with the motion to limit certain testimony, the [c]ourt finds the outcome of this trial would not have changed. As such, the second prong of the Strickland test[,] that is but for the counsel's unprofessional errors the result would have been different[,] cannot be met.
We affirm for the reasons the trial judge expressed. Defendant's claim of
cumulative error fails because we found error only in the prosecutor's
summation, and that error is insufficient to reverse.
Finally, defendant argues his sentence was excessive because the judge
misapplied the aggravating and mitigating factors by counting factor two twice.
He asserts the court should not have found aggravating factors three or nine.
Defendant contends the court failed to find mitigating factors two, three, five,
and eight. He argues he should have been sentenced one degree lower and his
sentences should have run concurrently.
We review a judge's sentencing decision under an abuse of discretion
standard. State v. Pierce, 188 N.J. 155, 169-70 (2006). We "may not substitute
[our] judgment for that of the trial court, but [we] may review a sentence to
determine if the trial court violated the sentencing guidelines." State v. Johnson,
A-5023-17T1 27 118 N.J. 10, 15 (1990) (citations omitted). We may review and modify a
sentence "only when the court's determination was 'clearly mistaken.'" State v.
Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401
(1989)). A trial judge is given "wide discretion" to impose a sentence, provided
it is within the statutory framework, and we must give that decision "great
deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). Our role is to assure
the sentencing guidelines were met, the findings on aggravating and mitigating
factors are based upon "competent credible evidence in the record," and the
sentence is not "clearly unreasonable so as to shock the judicial conscience." Id.
at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
The trial judge sentenced defendant to two consecutive ten-year terms of
incarceration on each count of attempted murder, subject to the No Early Release
Act, N.J.S.A. 2C:43-7.2. Applying the statutory factors set forth in N.J.S.A.
2C:44-1(a) and (b), the judge found aggravating factors one, two, three, and
nine, and mitigating factors seven, nine, and ten. Defendant did not present
compelling reasons to downgrade the first-degree charges. See State v.
Megargel, 143 N.J. 484, 502 (1996). Because the judge imposed the minimum
legal term on each first-degree attempted murder charge, we need not scrutinize
the individual sentencing factors.
A-5023-17T1 28 In State v. Yarbough, our Supreme Court identified the criteria for
determining when consecutive, as opposed to concurrent, sentences should be
imposed, namely:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims; [and]
(e) the convictions for which the sentences were imposed are numerous.
[100 N.J. 627, 643-44 (1985) (footnote omitted).]
These factors "should be applied qualitatively, not quantitatively." State v.
Liepe, 453 N.J. Super. 126, 137 (App. Div. 2018) (quoting State v. Carey, 168
N.J. 413, 427 (2001)). A consecutive sentence may be imposed, even if a
majority of the Yarbough factors support concurrent sentences. Carey, 168 N.J.
at 427-28. The fairness of the overall sentence should be considered in
reviewing the imposition of consecutive sentences. State v. Sutton, 132 N.J.
471, 485 (1993).
A-5023-17T1 29 Here, the trial judge imposed consecutive sentences,
[b]ecause these crimes involved two separate acts of violence involving two separate victims, both of whom were stabbed by this defendant during that September 13[], 2014 incident, both victims suffered serious injury as a result of defendant's conduct and if it wasn't for the medical intervention both would have bled to death. So, the [c]ourt finds for those reasons . . . that running this consecutive as to factor number one, there shall be no crimes which means if the count one and count three were to run concurrent it essentially translates to the sentence is only for one victim, not the other and, as such, the other crime will be what is considered as a free crime in the system.
The judge evaluated the remaining Yarbough factors, and concluded "under the
circumstances[,] defendant's application for concurrent [sentences] is hereby
denied" and ordered the minimum consecutive sentences for each of defendant's
offenses.
The judge did not err. "[C]rimes involving multiple victims represent an
especially suitable circumstance for the imposition of consecutive sentences
because the 'total impact of singular offenses against different victims will
generally exceed the total impact on a single individual who is victimized
multiple times.'" State v. Molina, 168 N.J. 436, 442 (2001) (quoting Carey, 168
N.J. at 428). "[T]he multiple-victims factor is entitled to great weight and
A-5023-17T1 30 should ordinarily result in the imposition of at least two consecutive terms."
Ibid. (quoting Carey, 168 N.J. at 429-30).
Affirmed.
A-5023-17T1 31