NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2152-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
v. June 4, 2020
APPELLATE DIVISION SANDRO VARGAS,
Defendant-Appellant. _______________________
Submitted November 4, 2019 – Decided June 4, 2020
Before Judges Messano, Ostrer and Vernoia.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 15-08- 1756.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County Prosecutor, attorney for respondent (Stephen Anton Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D. A jury found defendant guilty of first-degree purposeful murder of his
former girlfriend, and the court sentenced him to a thirty-year sentence, with a
thirty-year parole disqualifier. On appeal, defendant challenges two
evidentiary rulings: (1) the court's decision to admit the victim's daughter's
testimony that, a few months before the homicide, defendant threatened the
victim, "if she wasn't with him she wouldn't be with anybody," and (2) the
court's denial of defendant's motion to exclude his two custodial statements.
He contends the probative value of the threatening statement was substantially
outweighed by its prejudice. And he contends the use of Spanish-speaking
officers, rather than neutral interpreters, rendered his waiver of his Miranda1
rights involuntary.
We reject both these arguments and affirm. Only the first argument
warrants our extended discussion. For reasons we discuss below, we conclude
the court reached the right result – admitting into evidence the threatening
statement – but for the wrong reason. The court held the statement was
admissible as a statement of a party opponent under N.J.R.E. 803(b)(1),
despite also finding it inadmissible under N.J.R.E. 404(b). We conclude the
statement had to satisfy both rules, and it did; therefore, there was no error in
admitting it into evidence at trial.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
A-2152-17T1 2 I.
According to the State's proofs, Patricia Hiciano had an intimate, but
rocky, relationship with defendant, who was married. She was the single
parent of four children, and worked at a Newark restaurant. A few months
before the homicide, defendant pushed his way into Hiciano's home. Hiciano
and defendant argued. Hiciano's teenage daughter testified at a pre-trial
N.J.R.E. 104 hearing that defendant was drunk, and she overheard him threaten
her mother, "if you can't be with me, then you can't be with anyone." At trial,
the daughter testified, "he said . . . he was tired of telling her that if she wasn't
with him she wouldn't be with anybody." Defendant confirmed in his custodial
interview that he was last intimate with Hiciano about five months before the
murder.2
The night of the murder, defendant showed up at Hiciano's restaurant
shortly before her shift ended. He ate dinner at the bar and drank several
beers. A friend of defendant, Jose Luis Silva Lopez, happened to enter, and
joined him. Lopez testified at trial that defendant told him he intended to have
sex with Hiciano at a hotel later than evening. But, incongruously, he showed
2 The daughter testified at the Rule 104 hearing that defendant threatened her mother four to five months before she was killed, but expressed some uncertainty about the precise date. At trial, she agreed with the prosecutor's suggestion that the threat was made "a few months" before the homicide, but could not pinpoint the date on cross-examination.
A-2152-17T1 3 Lopez a photo of Hiciano with her new boyfriend. Lopez testified that
defendant appeared jealous. Defendant also told Lopez that he had a
compromising video of Hiciano that could get her in trouble with her boss.
Eventually, Lopez and Hiciano accepted rides home from defendant. He
had his wife's Honda. Defendant dropped Lopez off first. The State
established defendant's whereabouts thereafter based largely on recordings
from video surveillance cameras at various points along his route. After
dropping off Lopez, defendant drove to a hotel. But, rather than enter wi th
defendant, Hiciano left the car and walked away. Defendant followed slowly
in the car, then drove off as Hiciano went to a Domino's pizzeria to buy a pizza
she promised her children. She waited there for over twenty minutes, and then
walked roughly half a mile home with the pizza. As she approached her
building, minutes before 10:30 p.m., she spoke by phone to a male friend. 3
She told him she would call him once she arrived home. But she never did.
While Hiciano was getting her pizza, defendant was recorded parking
and then exiting his car around the block from her building. He had plenty of
time to reach her apartment building to await her arrival. Shortly after 10:30
p.m., a resident of the first floor apartment heard a scuffle in the vacant
3 The friend testified at trial that he had known Hiciano for two or three months, but he did not expressly state whether they had a romantic relationship.
A-2152-17T1 4 apartment above her, including muffled screams and the sound of athletic
shoes – like those defendant wore that night – squeaking on the floor. A few
minutes later, defendant was recorded returning to his car and leaving. About
an hour later, he was recorded arriving at his home, although a drive directly
from Hiciano's home to defendant's was much quicker.
First confronted by Hiciano's family, and then by the police, defendant
gave a series of inconsistent statements about his whereabouts. That night,
Hiciano's daughter fell asleep thinking her mother was simply delayed. The
next morning, after discovering her mother had not returned at all, she
telephoned defendant, but the call went to voicemail. She then called one of
her mother's co-workers who happened to be with defendant at the time, and
he put him on the phone. The daughter asked defendant if he had seen her
mother. He lied that he had not seen her in a while. He then pretended he had
a bad connection, and hung up. The daughter then reported her mother
missing to the police.
The same day, Hiciano's sister, after some difficulty, reached defendant
by telephone to inquire about her sister. This time, defendant lied that he
dropped her off in front of her apartment the night before, drove off , and then
never saw her again.
A-2152-17T1 5 In the course of an unrelated investigation, five days after Hiciano failed
to come home, police discovered her body in a vacant second-floor apartment.
An expert testified she had been strangled to death. Another expert testified
that DNA matching defendant's was found under her fingernails. The State
also presented evidence that small pieces of debris found on the Honda's
driver's side floor matched debris from the apartment where Hiciano was
killed.
When first questioned by police, defendant insisted he dropped Hiciano
off across the street from her building. He said a group of men and a woman
had congregated there, evidently suggesting they may have been the killers.
Over the course of two interviews, defendant shifted his story as police
confronted him with what they had learned from the video surveillance and
other aspects of their investigation. He ultimately insisted he last saw her soon
after she left his car in front of the hotel. He maintained that Hiciano h ad
proposed to have sex with him, but she changed her mind, got out of his car,
and walked away from him. He denied going into her building, and he denied
killing her.
Defendant did not testify or present any defense witnesses. Defense
counsel argued in summation that the police planted the debris in defendant's
car. She contended that Hiciano would not have gone to the second-floor
A-2152-17T1 6 apartment willingly with defendant, but no witness testified hearing a struggle
on the stairs or in the hallway, and the pizza dinner sat undisturbed. She also
asserted discrepancies in the State's timeline. She suggested the DNA
evidence could have come from prior contacts with defendant; and there was
insufficient time between Hiciano's arrival, and defendant's departure , to
commit murder.
The assistant prosecutor reviewed the evidence we have already
described. He referred to defendant's threatening statement to Hiciano, as
recounted by her daughter, and asserted that was proof of his motive.
The jury found defendant guilty of purposeful murder.
Defendant raises the following two points on appeal:
POINT I
THE COURT ERRED IN FINDING TESTIMONY OF THE VICTIM'S DAUGHTER ABOUT DEFENDANT'S PRIOR VERBAL STATEMENT TO HER MOTHER ADMISSIBLE.
POINT II
DEFENDANT'S STATEMENTS TO POLICE SHOULD NOT HAVE BEEN ADMITTED BECAUSE UNTRAINED POLICE OFFICERS WERE USED AS SPANISH INTERPRETERS, RESULTING IN ERRORS THAT COULD WELL HAVE AFFECTED THE OUTOME OF THE TRIAL
A. Amateur interpreters produce unreliable translations.
A-2152-17T1 7 B. Using inherently biased police interpreters compromises the interrogation.
C. In this specific case, it was evident that the integrity of Vargas's statement was compromised and that the voluntariness of his waiver cannot be presumed.
II.
We reject defendant's contention that the court erred in admitting his
out-of-court statement to the victim. However, we do so for reasons other than
those the trial court presented. See Hayes v. Delamotte, 231 N.J. 373, 386-87
(2018) (stating that "[a] trial court judgment that reaches the proper conclusion
must be affirmed even if it is based on the wrong reasoning"); see also State v.
Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011).
A.
The trial court rejected the State's argument that defendant's threatening
statement was admissible under N.J.R.E. 404(b) to prove his motive to kill the
victim. After a pre-trial N.J.R.E. 104 hearing, the court applied the four-
pronged test under State v. Cofield, 127 N.J. 328, 338 (1992). 4 The court
4 The test requires that other-crimes-or-wrongs evidence be "admissible as relevant to a material issue," "similar in kind and reasonably close in time to the offense charged," and "clear and convincing"; and "[t]he probative value of the evidence must not be outweighed by its apparent prejudice." Cofield, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions of
A-2152-17T1 8 found by clear and convincing evidence that defendant made the statement, as
the court found the daughter to be credible. The court also found that the
statement pertained to a material issue – motive. The court expressed some
uncertainty whether the statement was reasonably close in time, although it
referred to an act that was similar in kind to the charged offense. However,
applying the fourth Cofield prong, the court denied admissibility under
N.J.R.E. 404(b), finding, "[T]here is sufficient other evidence to demonstrate
defendant's motive for the murder, thus, the apparent prejudice to defendant
does outweigh the probative value." Nonetheless, accepting the State's
alternative argument, the court held that defendant's statement was admissible
because it was a statement of a party opponent under N.J.R.E. 803(b)(1).
Defendant does not challenge the court's ruling that Rule 803(b)(1)
provided an independent ground for admitting defendant's statement,
notwithstanding the court's judgment that it failed the Cofield test. Rather,
defendant contends that the court should have excluded defendant's statement
because, under N.J.R.E. 403, its probative value was "substantially outweighed
by the risk of . . . undue prejudice." In the pre-trial hearing, defendant did not
invoke N.J.R.E. 403 as a separate basis for excluding the statement. So, we
Guilt And Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L. J. 135, 160 (1989)).
A-2152-17T1 9 consider the point as a claim of plain error. See State v. Macon, 57 N.J. 325,
333 (1971); R. 2:10-2.
In support of his argument, defendant invokes the court's finding, under
the Cofield test's fourth prong, that the threatening statement's probative value
was outweighed by its prejudice. Defendant contends that the fourth prong
balancing and the N.J.R.E. 403 balancing are essentially the same.
Defendant's argument rests on a false premise. The two balancing tests
are not equivalent. The Cofield prong presents a more rigorous test for
admitting evidence. The Supreme Court declared that the fourth Cofield prong
"requires an inquiry distinct from the familiar balancing required under
N.J.R.E. 403: the trial court must determine only whether the probative value
of such evidence is outweighed by its potential for undue prejudice, not
whether it is substantially outweighed by that potential as in the application of
Rule 403." State v. Green, 236 N.J. 71, 83 (2018) (citing State v. Barden, 195
N.J. 375, 389 (2008)).
For reasons stated below, we reject defendant's contention that the
potential of undue prejudice "substantially outweighed" the probative value of
his threatening statement to the victim. However, we are constrained to review
the court's application of the Cofield factors, because we are convinced the
trial court erred in holding that a party opponent's statements may be admitted
A-2152-17T1 10 under the hearsay exception, N.J.R.E. 803(b)(1), even if it is otherwise
inadmissible as other evidence of crimes, wrongs or acts to prove motive under
N.J.R.E. 404(b). To be admissible, defendant's statement must satisfy both the
hearsay exception and N.J.R.E. 404(b). And, even if evidence is "relevant
under N.J.R.E. 404(b), such evidence must nevertheless survive the crucible
for all relevant evidence," under N.J.R.E. 403. State v. Lykes, 192 N.J. 519,
534-35 (2007) (noting that evidence admissible under N.J.R.E. 404(b) may be
excluded if under N.J.R.E. 403, "its probative value is substantially
outweighed by the risk of (a) undue prejudice, confusion of issues, or
misleading the jury or (b) undue delay, waste of time, or needless presentation
of cumulative evidence").
We conclude the court erred in finding that the statement's prejudice
outweighed its probative value under the fourth Cofield prong. Necessarily,
the statement did not fail the less demanding prejudice-probativeness weighing
under N.J.R.E. 403, nor did it fail any other Rule 403 test. Therefore,
defendant's statement was admissible because it satisfied N.J.R.E. 404(b) and
N.J.R.E. 403, as well as N.J.R.E. 803(b)(1).
Testimony that meets an exception to the general exclusion of hearsay,
see N.J.R.E. 802, may still be excluded on other grounds. By its plain
language, N.J.R.E. 803 does not affirmatively declare certain hearsay
A-2152-17T1 11 statements admissible. Rather, N.J.R.E. 803 simply declares that "[t]he
following statements are not excluded by the hearsay rule," found in N.J.R.E.
802. That leaves open the possibility of exclusion on other grounds. As the
Supreme Court Committee Comment states, "[T]he exceptions 'are phrased in
terms of nonapplication of the hearsay rule, rather than in positive terms of
admissibility, in order to repel any implication that other possible grounds for
exclusion are eliminated from consideration.'" 1991 Supreme Court
Committee Comment to N.J.R.E. 802 (quoting Notes of Advisory Committee
on Proposed Rules, Note to Fed. R. Evid. 803 (1984)); see also Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, comment on N.J.R.E.
803(b)(1) (2019) (noting that "[i]n appropriate cases other constitutional,
statutory or rule requirements might preclude a statement admissible under
[N.J.R.E. 803(b)(1)]").
In particular, admissible hearsay must avoid the exclusions found in
Article IV of our Rules of Evidence. Some hearsay exceptions are grounded in
the policy judgment that certain out-of-court statements are inherently reliable
or trustworthy because of the speaker's position or motivation, or the context
in which the statements were made, among other factors. See State v. Phelps,
96 N.J. 500, 508 (1984) (stating that hearsay exceptions "are justified
primarily because the circumstances under which the statements were made
A-2152-17T1 12 provide strong indicia of reliability"). The exception for statements of a party
opponent is based on the idea that such statements are usually quite probative,
see State v. Covell, 157 N.J. 554, 573-74 (1999), and the party, "cannot
complain of his inability to confront and cross-examine the declarant, since he
himself is the declarant," State v. Kennedy, 135 N.J. Super. 513, 522 (App.
Div. 1975).
Yet, Article IV addresses different goals. They include assuring that
evidence – however trustworthy, reliable, or probative – is relevant, see
N.J.R.E. 402; is not unduly prejudicial, confusing or time-consuming, see
N.J.R.E. 403; and, generally speaking, is not used simply to impugn the
defendant's character, or to paint the defendant as a bad person, prone to
commit crimes or bad acts, see N.J.R.E. 404. Applying comparable federal
rules, one federal court succinctly stated, "All evidence, including evi dence
that qualifies as an exception to the hearsay rule, must be relevant, as defined
in Article IV of the Federal Rules of Evidence." United States v. Micke, 859
F.2d 473, 479 (7th 1988).
In State v. Covell, 157 N.J. 554, 573-74 (1999), our Supreme Court
affirmed the principle that a defendant's statement, which was admissible
under N.J.R.E. 803(b)(1), still had to pass muster under N.J.R.E. 403 – that is,
its probative value must not have been substantially outweighed by the risk of
A-2152-17T1 13 undue prejudice, among other risks. Likewise, a defendant's statement about a
prior crime, wrong or act – even if it satisfies a hearsay exception – must
overcome the N.J.R.E. 404(b) hurdle. N.J.R.E. 404(b) is a rule of exclusion.
Green, 236 N.J. at 84. In other words, the party opponent's statement may not
be admitted to show propensity to commit a crime; but it may be admitted to
show motive, among other things, provided the statement is proved by clear
and convincing evidence; it pertains to a material issue; it is similar in time
and reasonably close in time in appropriate cases; and the probative value is
not outweighed by prejudice to the defendant. See Cofield, 127 N.J. at 338.
We have found no reported New Jersey case that expressly states this
evident principle, but federal courts have recognized that a statement of a party
opponent, although admissible under federal hearsay rules, must still satisfy
the constraints on introducing other crimes, wrongs and acts evidence.
"Although the statements are party admissions under [Federal] Rule [of
Evidence] 801(d) and thus not hearsay, 5 they must nevertheless also be
analyzed for admissibility under Rule 404(b) because they reveal or suggest
prior criminal conduct." United States v. Oberle, 136 F.3d 1414, 1418 (10th
5 Under our rules, a party opponent's statement is hearsay, but admissible under an exception to the hearsay rule. N.J.R.E. 803(b)(1). Under the federal rule, a party opponent's statement is excluded from the hearsay definition itself. Fed. R. Evid. 801(d).
A-2152-17T1 14 Cir. 1998); see also United States v. Simpson, 479 F.3d 492, 502 n.2 (7th Cir.
2007) (stating, "[t]hat a statement is not hearsay . . . does not answer the
separate question of whether the statement is precluded as improper propensity
evidence"), abrogated in part on other grounds in United States v. Boone, 628
F.3d 927 (7th Cir. 2010); Micke, 859 F.2d at 478-79 (holding that trial court
properly applied Fed. R. Evid. 403 and 404(b) to defendant's statement
otherwise admissible under Fed. R. Evid. 801(d)(2)).
B.
Although N.J.R.E. 404(b) presented a separate hurdle for admitting
defendant's statement, notwithstanding it satisfied a hearsay exception, we are
convinced that the court erred, and defendant's statement satisfied the Cofield
test for admissibility under N.J.R.E. 404(b). In particular, the evidence did not
support the court's conclusion that the prejudice to defendant outweighed the
statement's probative value. 6
6 Although the State does not challenge the court's Cofield analysis on appeal – indeed, it has conceded its correctness – we discern no impediment in our addressing the issue. The interests of justice require it, and defendant fully briefed the balancing between the statement's probative value and its prejudice, albeit in the context of N.J.R.E. 403. Cf. Office of Employee Relations v. Commc'ns Workers of Am., 154 N.J. 98, 108 (1998) (stating that a court will ordinarily not introduce an issue the parties have not raised unless the interests of justice require it, and the parties have had a chance to address the issue).
A-2152-17T1 15 We are mindful of our deferential standard of review of trial court
evidentiary rulings. See, e.g., State v. Brown, 170 N.J. 138, 147 (2001). But,
"[w]e owe the trial court's evidentiary findings reasoned deference, not blind
deference." State ex rel. A.R., 234 N.J. 82, 106 (2018). Although we may not
simply substitute our judgment for the trial court's, we shall not affirm an
evidentiary ruling that represents "a clear error of judgment." State v. Perry,
225 N.J. 222, 233 (2016) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
We focus on the fourth Cofield prong. The court found that the evidence
met the materiality prong, and the clear-and-convincing evidence prong. And,
the temporality aspect of the second prong, about which the court expressed
some uncertainty, need not apply. As the Court noted in State v. P.S., 202 N.J.
232, 255 n.4 (2010), the similarity-and-temporality prong is not based in the
text of N.J.R.E. 404(b); the prong "need not receive universal application in
Rule 404(b) disputes"; and "[i]ts usefulness as a requirement is limited to cases
that replicate the circumstances in Cofield." Notably, Cofield involved proof
that the defendant constructively possessed certain drugs, because he
possessed similar drugs shortly after the event subject to prosecution. See
State v. Williams, 190 N.J. 114, 131 (2007) (discussing Cofield and limiting
resort to similarity and temporality prong).
A-2152-17T1 16 In any event, defendant's threat, just a few months before the homicide,
was not too remote. See State v. Ramseur, 106 N.J. 123, 264-67 (1987)
(holding that evidence of a threat and assault a year-and-a-half before the
victim's stabbing death, and of additional threats four months and three months
before the death, was not too remote to prove motive and intent); State v. T.C.,
347 N.J. Super. 219, 234 (App. Div. 2002) (admitting evidence that defendant
mistreated child prior to a five-year absence, to demonstrate malice, hatred,
and intent to harm child, in prosecution that the defendant endangered the
child's welfare after he returned to the defendant's custody).
Although the fourth Cofield prong is generally the most difficult to
satisfy, see State v. Barden, 195 N.J. 375, 389 (2008), "evidence of motive or
intent, 'require[s] a very strong showing of prejudice to justify exclusion,'"
Green, 236 N.J. at 84 (quoting State v. Garrison, 228 N.J. 182, 197 (2017));
Covell, 157 N.J. at 570-71 (affirming that principle). "A wide range of motive
evidence is generally permitted, and even where prejudicial, its admission has
been allowed in recognition that it may have 'extremely high probative value.'"
State v. Rose, 206 N.J. 141, 165 (2011) (quoting State v. Long, 173 N.J. 138,
164-65 (2002)). "Where the prosecution has a theory of motive that rests on
circumstantial evidence, that evidence should not be excluded merely because
it has some capacity to inflame a juror's sensibilities; to hold otherwise would
A-2152-17T1 17 preclude a jury from inferring a defendant's 'secret design or purpose.'" State
v. Calleia, 206 N.J. 274, 294 (2011).
The court must consider whether "other less prejudicial evidence may be
presented to establish the same issue," which would favor exclusion. Green,
236 N.J. at 84 (quoting Rose, 206 N.J. at 161). Put another way, the court
must consider whether excluding the evidence would unduly damage the
State's case. See State v. Stevens, 115 N.J. 289, 303 (1989) (stating that "[t]he
trial judge should be careful to exclude other torts or crimes evidence . . .
wherever he can reasonably do so without damaging the plaintiff's or
prosecutor's case" (quoting 1963 Report of the New Jersey Supreme Court
Committee on Evidence, Comment on Rule 55, at 103)); see also Barden, 195
N.J. at 389.
Given its critical role in proving motive or intent, our Supreme Court has
held evidence of prior threats or assaults admissible despite claims of
prejudice. See Ramseur, 106 N.J. at 264-67 (holding admissible evidence of
threats and violence preceding homicide, and noting that "[e]vidence of
arguments or violence between a defendant and homicide victim has been
admitted in prior New Jersey cases," and reviewing those cases); see also State
v. Machado, 111 N.J. 480, 488-89 (1988) (holding admissible, to prove motive
for murder, testimony that the defendant pushed and yelled at his girlfriend
A-2152-17T1 18 after she expressed intent to have an abortion). The Court has also held that
evidence may be admitted under N.J.R.E. 404(b) to prove acts of jealousy
toward a girlfriend, which established "intent, motive, and the absence of an
accident" in shooting her male friend. State v. Nance, 148 N.J. 376, 388-89
(1997).
Our court also reached similar conclusions regarding evidence of prior
threats, mistreatment, or acts of jealousy. See T.C., 347 N.J. Super. at 234-35
(holding that prejudice did not outweigh the probative value of prior
mistreatment evidence, because it was not offered "to show a general
'disposition' to commit crimes or to show that defendant acted 'in conformity '
with such a disposition," but was admitted to show the defendant's hostility
toward the victim and her motive and intent); State v. Angoy, 329 N.J. Super.
79 (App. Div. 2000) (admitting evidence of prior jealousy-driven assault to
prove purposeful murder)7; State v. Engel, 249 N.J. Super. 336, 372-74 (App.
Div. 1991) (admitting evidence of the defendant's prior threats and violence to
7 In Angoy, the defendant's own statement of why he killed the victim did not preclude admission of evidence of prior threats or violence to prove motive. The defendant argued passion-provocation manslaughter in lieu of murder. The victim's mother testified that one month before the homicide, the defendant choked her daughter and stated he did so because she had dated a white man. Angoy, 329 N.J. Super. at 85-88. We held the mother's testimony was admissible to prove motive or intent, notwithstanding a police officer's testimony that defendant said he killed the victim because she gave him a sexually transmitted disease. Id. at 83.
A-2152-17T1 19 prove motive for hiring a hit man to kill his wife); State v. Schubert, 235 N.J.
Super. 212, 224 (App. Div. 1989) (admitting evidence the defendant
previously threatened his landlords over rent increase to demonstrate motive to
commit arson after he moved from the premises); State v. Breakiron, 210 N.J.
Super. 442, 460-61 (App. Div. 1986) (admitting evidence of prior violence and
threats against girlfriend and former boyfriend to prove jealousy-based motive
for murder and "to dispel the impression created by [the] defendant's evidence
that a purposeful or knowing murder was inconsistent with the couple's loving
relationship"), aff'd in part and rev'd in part on other grounds, 108 N.J. 591
(1987).
C.
Applying these principles, it was a clear error in judgment for the trial
court to find that the probative value of defendant's prior threat was
outweighed by the prejudice. There was little risk that the jury would, based
on the daughter's testimony, "convict the accused simply because the jurors
perceive[d] him to be a 'bad person,'" which is the danger that N.J.R.E. 404(b)
is designed to prevent. See Ramseur, 106 N.J. at 265. No doubt, the statement
demonstrated that defendant was hypocritical, as he insisted upon his
paramour's fidelity while he cheated on his own wife; he was domineering, as
he had no right to control his girlfriend's decision to be intimate with other
A-2152-17T1 20 men, or to stop being intimate with defendant; and he was threatening, without
saying how he would stop Hiciano from seeing other men. But, the clear
import of defendant's statement was to explain why he killed her. He was
possessive, he would not tolerate rejection, and he would prevent her from
seeing other people, one way or another. Proof of that state of mind supported
his motive to kill her. It dispelled his claim in his police interview that she
was the one who proposed to have sex with him, and that he was not upset
when she got out of his car, rather than enter the hotel with him. 8
There was no evidence of defendant's motive and intent comparable to
the daughter's testimony of his threatening statement. Defendant cites Lopez's
opinion that defendant was jealous; the daughter's general description of
defendant's failing relationship with her mother; and the video surveillance
evidence of defendant's whereabouts the night of the homicide. None o f that
measures up to the probative power of defendant's threat. Lopez testified that
merely defendant's demeanor – not anything he actually said – reflected
defendant was jealous when he showed Lopez a photograph of Hiciano and her
8 The jury did not need to hear defendant's threatening statement to conclude he was a despicable man. Putting the statement aside, the jury learned he cheated on his wife. He told Lopez that he had compromising photos that could get Hiciano in trouble with her boss; photos he could use to pressure her to do what he wanted. When her daughter and sister desperately tried to locate her, defendant lied to them.
A-2152-17T1 21 new boyfriend. Lopez's opinion was no substitute for defendant's own
expression of his anger and possessiveness, and his intention to act on those
feelings.
Likewise, the daughter's testimony that defendant and her mother argued
often and their relationship became "problematic" could be explained away
simply as proof the two were no longer suited for each other. It did not
convey, as defendant's statement did, that he would have Hiciano, or no one
would. Lastly, the surveillance video recordings demonstrated defendant's
physical opportunity to commit murder. They also indicated what may have
been the precipitating event, when the victim got out of the car, rather than
enter the hotel. But, the evidence did not demonstrate, as clearly as
defendant's own statement, his state of mind and his intention to kill to her, to
punish her for rejecting him, and to prevent her from seeing other men. In
short, there was no compelling evidence to establish defendant's motive for
murder that was less prejudicial to defendant than his own statement.
In sum, the admission of defendant's threatening statement does not
warrant reversal. The statement's probative value outweighed its prejudice. It
should have been admitted under N.J.R.E. 404(b); logically, there would have
been no basis to exclude it under the less demanding prejudice-probativeness
A-2152-17T1 22 balancing under N.J.R.E. 403; and defendant suggests no other basis to
exclude the statement under N.J.R.E. 403. 9
III.
We need not comment at length on defendant's argument that his
custodial statement should have been excluded because Spanish-speaking
police officers, instead of impartial interpreters, conducted the interrogation.
Police presented defendant with Spanish-language Miranda forms. They
reviewed the forms aloud with defendant in his language. And, defendant
expressed his willingness to speak to police on two occasions. The court
found defendant "was provided adequate interpretation," and was "fully
cooperative and responsive." Viewing the totality of the circumstances, the
court concluded, beyond a reasonable doubt, that defendant waived his rights
voluntarily, knowingly, and intelligently. We defer to that finding, as it was
9 We recognize that the court did not provide the required instruction on the limited use of Rule 404(b) evidence. See Rose 206 N.J. at 161 (discussing required limiting instruction); Cofield, 127 N.J. at 340-41 (same). As defendant has not raised that issue, even as a matter of plain error (since the sole ground for exclusion argued on appeal is N.J.R.E. 403), we shall not r each the issue, particularly since the failure to give the required instruction does not always warrant reversal. See e.g., State v. Loftin, 146 N.J. 295, 394-95 (1996) (declining to reverse based on omission of limiting instruction); State v. Hunt, 115 N.J. 330, 364 (1989) (finding no plain error from failure to deliver instruction in view of overwhelming proof of guilt); Schubert, 235 N.J. Super. at 224 (declining to find plain error, where the trial court failed to deliver an unrequested Rule 404(b) curative instruction); State v. Rajnai, 132 N.J. Super. 530, 537-38 (App. Div. 1975).
A-2152-17T1 23 supported by sufficient credible evidence. See State v. S.S., 229 N.J. 360, 374
(2017). The court applied the appropriate legal standard and standard of proof.
See State v. Bey, 112 N.J. 123, 134 (1988). And, defendant has pointed to no
misunderstanding, based on the officers' language skills, affecting defendant's
waiver. See State v. A.M., 237 N.J. 384, 399 (2019) (rejecting argument that
waiver was not voluntary or knowing, absent evidence that defendant
misunderstood officers who conducted the interrogation in Spanish). To the
extent not addressed, defendant's remaining points lack sufficient merit to
warrant discussion. R. 2:11-3(e)(2).
Affirmed.
A-2152-17T1 24