State v. Francisco

• Decision Date: 08 April 2022
• Docket Number: DOCKET NO. A-3840-18
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Nestor FRANCISCO, a/k/a Canela Lopez, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

471 N.J.Super. 386

273 A.3d 473

STATE of New Jersey, Plaintiff-Respondent,

v.Nestor FRANCISCO, a/k/a Canela Lopez, Defendant-Appellant.

DOCKET NO. A-3840-18

Superior Court of New Jersey, Appellate Division.

Argued March 9, 2022

Decided April 8, 2022

Stefan Van Jura, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Stefan Van Jura, of counsel and on the brief).

Caitlinn Raimo, Special Deputy Attorney General/Acting Assistant Prosecutor argued the cause for respondent (Theodore N. Stephens II, Acting Essex County Prosecutor, attorney; Caitlinn Raimo, of counsel and on the briefs).

Alexander Shalom, Senior Supervising Attorney and Director of Supreme Court Advocacy, argued the cause for amicus curiae American Civil Liberties Union of New Jersey Foundation (American Civil Liberties Union of New Jersey Foundation, attorneys; Alexander Shalom and Joanne LoCicero, on the brief).

Barry Evenchick, Hackensack, argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Pashman Stein Walder Hayden, PC, attorneys; CJ Griffin, of counsel; Joshua P. Law, on the brief).

Amanda Frankel, Deputy Attorney General, argued the cause for amicus curiae Office of the Attorney General (Matthew J. Platkin, Acting Attorney General, attorney; Amanda Frankel, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Whipple, Geiger and Susswein.

The opinion of the court was delivered by

GEIGER, J.A.D.

This case presents the issue whether law enforcement officers are required to advise undocumented noncitizen suspects of the potential immigration consequences of giving a statement relating to possible criminal charges that have not been filed. It also presents the issue of the appropriate test to be used by trial courts when deciding whether to admit or suppress a statement following inaccurate immigration advice by an interrogating law enforcement officer.

Defendant Nestor Francisco was convicted of murder, related weapons offenses, and tampering with evidence. He appeals his conviction and sentence and challenges the admission of his statement, evidence of impecuniosity, and evidence of other crimes. We affirm.

I.

We take the following facts from the record. Defendant is from the Dominican Republic, lived with his parents in the Bronx, and was thirty-seven years old at the time of the incident. He entered the United States undocumented in or around 2006.

Defendant worked in construction. In 2014, Patricia Valecia hired defendant to do construction work on her home. According to Valecia, he was initially hired to do clean-up work at her home in the aftermath of Hurricane Katrina. When he asked her for more work, she hired him to do demolition in her basement. Valecia acted as the translator between defendant and her partner, Charles Jeffrey¹ (Jeffrey or the victim), because defendant only spoke Spanish. Jeffrey was often home when defendant was working, and they worked on the basement together. Since defendant lived in New York, he would take the train into Newark and Jeffrey would pick him up. He always contacted either Jeffrey or Valecia before he came to work.

A few months into his work, Valecia's son Pablo and his wife noticed jewelry and shoes were missing and suspected defendant of theft. Valecia explained her concerns to defendant and provided an opportunity for him to return the missing items, but they were never returned. In his statement to police, defendant acknowledged that these accusations caused the breakdown of his working relationship with Jeffrey and Valecia.

On November 19, 2015, the Essex County Prosecutor's Office Crime Scene Unit met Newark Police at a residence in Newark, following reports of a homicide. The first floor of the building was occupied by Elisa Pires and her son Steven. The second floor was occupied by the building's owners, Jeffrey and Valecia. Earlier that day, Elisa entered the building and found blood on the walls. She described the scene "as if [the walls] were painted in red." When she realized that it was blood, and not paint, she called her son Steven. She saw Jeffrey's body at the bottom of the basement staircase. Eliza waited for Steven to arrive; her other son called 911 to report what she had found.

Newark Police found Jeffrey's body in the basement with a hammer embedded in the left side of his skull and puncture wounds on his abdomen

. They found blood spatter on the basement walls, the hallway leading to the basement door, and on the door leading to the staircase. During a walkthrough of the house, officers found a wallet and cell phone on the coffee table, a paint mixer attachment for a drill, two towels in the foyer, and black hair in the blood spatter. The kitchen stove was still on. A basket of quarters that was usually full was missing. Tools were scattered on the basement floor. Blood spatter was also present on the floor leading from the bathroom to the bedroom and there were bloody handprints on the walls leading down to the basement. The blood found throughout the scene was analyzed and determined to be the victim's. No useable fingerprints were recovered.

An autopsy revealed the victim suffered blunt force trauma to the head

, neck, torso, arms, and legs, multiple forehead lacerations, a skull fracture consistent with the injury caused by the embedded hammer, blood in the left upper eyelid, other facial lacerations, and injuries consistent with defensive wounds on the arms.

Detective Mario Suarez of the Essex County Prosecutor's Office interviewed Valecia at the scene. Valecia informed him that defendant had been working on the home and gave Suarez his phone number. Using that phone number, Suarez found defendant's Facebook page and his Bronx address.

Suarez and other officers went to defendant's address the next day. When defendant came to the door, he was wearing a bandage on his finger. When he noticed Suarez looking at the bandage, defendant fainted.

There were no eyewitnesses, but surveillance videos were recovered from an address near the victim's residence and defendant's residence. The first video showed defendant leaving his home at 10:15 a.m. on November 19, wearing jeans, a black coat, and carrying a bag of tools. Suarez compared this footage with the footage from Newark, which showed defendant leaving the victim's building at around 1:00 p.m. in grey sweatpants, a grey hoodie, and carrying a backpack of tools. Defendant returned to his home around 3:40 p.m., without the backpack but carrying something. At 3:56 p.m., defendant exited his home carrying a white trash bag. A different camera angle showed defendant throw the bag into a nearby trash bin.

Defendant was transported to the hospital after he fainted. While there, Suarez administered Miranda ² warnings to defendant in Spanish. Defendant initialed each of the Miranda warnings on the Miranda form and signed it, indicating he was willing to make a statement. Suarez also signed the card. Defendant had not yet been charged with any offenses and a warrant had not been issued for his arrest. The entire interrogation was conducted in Spanish.

Early in the questioning, defendant expressed concern about his undocumented immigrant status during the following brief exchange:

Defendant: And, and, and, and this thing will not cause me problems with my record, because I do not have papers. I am undocumented.

Suarez: No. No.

Defendant: I have not; I have not gotten into a stupid mess.

Suarez: No. Your status has nothing to do with this. I am not going to ask questions on your status, or how you got here to this country. Absolutely nothing.

Defendant: I mean I did not get myself into a mess.

.... Suarez: You understand everything I said before, correct?

Defendant: Yes.³

Following that exchange, defendant made incriminating statements about the incident that occurred between him and Jeffrey. Initially, defendant said that he was not in Newark at all that day, and claimed that he had a job in Brooklyn with his friend Raphael. Defendant said he injured his fingers at work. Suarez asked defendant if he had Raphael's number. Defendant claimed he did not, and that Raphael usually found him on the street for jobs.

However, after Suarez revealed that cameras caught defendant in Newark, defendant explained his version of what happened. He stated that Jeffrey insulted him when he went to Jeffrey's house to pick up some tools. Jeffrey began insulting him, then threw a mixing cone at him, and they started to fight. Jeffrey lunged at him, cut him with a knife, and they fell into the basement tangled up. Defendant also hit Jeffrey with Channellock pliers. In the basement, defendant threw a can of paint at Jeffrey, and the two threw screwdrivers at each other. Jeffrey tried to cut defendant with a knife, which injured his fingers. Defendant hit Jeffrey with a hammer one time, changed into clothes he kept in the basement, and left. He discarded his bloody clothes in a white garbage bag and threw it out near his Bronx home. Defendant insisted he acted in self-defense because Jeffrey attacked him.

A grand jury returned a twelve-count indictment charging defendant with: first-degree knowing or purposeful murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); fourth-degree possession unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts four, six, eight, and ten); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts five, seven, nine, and eleven); and fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count twelve).

The State filed a motion to admit defendant's statements to Detective Suarez. On March 22, 2017, the court conducted an evidentiary hearing. Suarez was the sole witness. Suarez testified to his first meeting with defendant and the circumstances of defendant's interrogation....