State v. Arriagas

• Decision Date: 06 February 1985
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Juan Ramos Florentino ARRIAGAS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 575

198 N.J.Super. 575

487 A.2d 1290

STATE of New Jersey, Plaintiff-Respondent, v. Juan Ramos Florentino ARRIAGAS, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted Dec. 18, 1984.

Decided Feb. 6, 1985.

Joseph H. Rodriguez, Public Defender, for defendant-appellant (Lowell Espey, Designated Counsel, Trenton, of counsel and on the brief).

Joseph A. Falcone, Passaic County Prosecutor, for plaintiff-respondent (Steven E. Braun, Asst. Prosecutor, of counsel and on the brief).

Before Judges PRESSLER, BRODY and HAVEY.

The opinion of the court was delivered by

BRODY, J.A.D.

Appellant and a co-defendant, Francisco Ruiz, were indicted for the murder and first degree robbery of Raymond Torres. The murder count charged the defendants with knowingly causing Torres's death "and/or" causing his death in the course of a robbery. The robbery count charged that the defendants were armed with a knife. Ruiz was never apprehended. A jury found appellant guilty of felony murder and first degree robbery. Pursuant to the trial judge's instructions, the jury, having found appellant guilty of felony murder, did not consider whether he was also guilty of purposely or knowingly killing Torres. ¹ The judge imposed consecutive prison sentences: 50 years for the murder with 25 years of parole ineligibility and 20 years for the robbery.

We agree with appellant that it was plain error for the judge to have sentenced him for armed robbery. That offense necessarily merged with felony murder. See State v. Rodriguez, 97 N.J. 263, 478 A.2d 408 (1984); State v. Hubbard, 123 N.J.Super. 345, 352, 303 A.2d 87 (App.Div.1973), certif. den., 63 N.J. 325, 307 A.2d 98 (1973). By keeping the jury from finding appellant guilty of purposeful or knowing murder, the judge lost the opportunity of imposing a separate sentence for robbery.

The operative facts as presented by the State differed fundamentally from those presented by appellant. According to the State, Torres left a neighborhood tavern when it closed at 3:00 a.m. He was inebriated but able to make his way home on foot. Along the way he was set upon by the defendants who assaulted and robbed him. They left Torres when Nicholas Santana Castro (Santana) came by. Torres, who was on the ground disabled by the beating, told Santana he had just been robbed. Santana crossed the street to a public telephone and called the police. Meanwhile, the defendants returned to Torres and stabbed him to death so that he could not identify them.

Appellant testified that he had been visiting Ruiz, Ruiz's brother, and three other Mexican men who lived in an apartment overlooking the place where Torres was killed. Shortly after leaving the apartment to walk together to appellant's home, appellant and Ruiz were accosted by Torres. Torres shouted ethnic slurs and obscenities at them and kicked appellant. Appellant responded by knocking Torres to the ground. Torres got up but before the fight could resume, Ruiz pushed appellant aside and stabbed Torres to death. Appellant claimed he was unaware that Ruiz had been carrying a knife. This version of events was corroborated by the four Mexican men who testified that they were looking out of their apartment window at the time. Their testimony was seriously undercut, however, by prior inconsistent statements each had given the police.

If the jury accepted all the State's evidence, they could have found appellant guilty of first degree armed robbery and purposeful murder committed after the robbery to silence the victim. On the other hand, if the jury accepted all of appellant's evidence, they could have found him guilty of at most a simple assault. As the trial judge viewed it, if the jury found that appellant committed the robbery and participated in the homicide he would be guilty of robbery and felony murder and his guilt of purposeful or knowing murder would be superfluous; if the jury found that he did not commit robbery but did participate in the homicide, he would be guilty only of purposeful or knowing murder. He therefore instructed the jury to consider purposeful or knowing murder only if they found appellant not guilty of robbery.

Like many other crimes, murder is defined in the Code by alternative sets of elements. A homicide is a murder when caused purposely, when caused knowingly, or "when the actor ... is engaged in the commission of ... or flight after committing ... [any of several crimes including robbery], and in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants...." N.J.S.A. 2C:11-3(a)(1), (2), and (3). The last set of elements is commonly called "felony murder." The manner in which a particular crime is committed may include two or more sets of elements that define the crime. Thus an intentional homicide committed in the course of or immediate flight from the commission of a "felony" would constitute both a purposeful murder and a felony murder.

When evidence of more than one set of elements could support a guilty verdict for the same crime, the trial judge should think twice before limiting the jury to a single guilty verdict for the crime. In the present case the jury was told that it need not consider purposeful murder if it found appellant guilty of felony murder. This produced verdicts of guilty of felony murder and the underlying felony. These crimes merge. Had the judge instructed the jury that they need not consider felony murder if they found appellant guilty of purposeful murder, merger would not have been required if they had returned verdicts of guilty of purposeful murder and robbery. State v. Stenson, 174 N.J.Super. 402, 416 A.2d 944 (Law Div.1980), aff'd o.b., 188 N.J.Super. 361, 457 A.2d 841 (App.Div.1982), certif. den., 93 N.J. 268, 460 A.2d 671 (1983).

It would also have been a mistake, however, to instruct the jury not to consider felony murder if they found appellant guilty of purposeful murder. As will appear hereafter, had the jury not found appellant guilty of felony murder, we would have had to order a new trial because of an error associated only with the purposeful murder charge.

Thus, the safest course for a trial judge to take where there is evidence to prove a crime by more than one set of elements is to have the jury return a verdict on each set. ² That way the judge maximizes his sentencing options where there may be guilty verdicts of related crimes, and minimizes the chance of reversal where there is trial error relating to only one of a number of sets of elements that could define the crime.

A second point raised by appellant requires some discussion. He contends that the judge erred in refusing to charge manslaughter. A "[c]riminal homicide constitutes manslaughter when ... [a] homicide which would otherwise be murder ... is committed in the heat of passion resulting from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). The judge denied the request to charge manslaughter because the scenarios presented by the parties left no room for the jury to find that the homicide was committed by appellant in the heat of passion resulting from a reasonable provocation. According to the State, the homicide resulted from appellant's desire to silence a witness; according to appellant, he took no part in the homicide.

When requested to do so, a trial judge must charge manslaughter in a murder case "if there is evidence which, if believed by the jury, would reduce the crime to voluntary manslaughter." State v. Powell, 84 N.J. 305, 317, 419 A.2d 406 (1980); see State v. Choice, 98 N.J. 295,...