State v. Torres

• Decision Date: 11 June 1998
• Citation: 713 A.2d 1,313 N.J.Super. 129
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Luis Angel TORRES, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 129

313 N.J.Super. 129

713 A.2d 1

STATE of New Jersey, Plaintiff-Respondent, v. Luis Angel TORRES, Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted May 28, 1998.

Decided June 11, 1998.

Ivelisse Torres, Public Defender, for defendant-appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel, and on the brief)

Peter Verniero, Attorney General, for plaintiff-respondent (Paul H. Heinzel, Deputy Attorney General, of counsel, and on the brief).

Before Judges SHEBELL, D'ANNUNZIO and COBURN.

The opinion of the court was delivered by

SHEBELL, P.J.A.D.

Defendant, Luis Angel Torres, and a co-defendant, Luis Gamboa, were charged as juvenile offenders arising out of an armed robbery and murder that took place on September 6, 1991, at the Torres and Gamboa were indicted on March 4, 1992, as follows: count one, knowing or purposeful murder ( N.J.S.A. 2C:11-3(a)(1) or (2)); count two, felony murder ( N.J.S.A. 2C:11-3(a)(3)); count three, armed robbery ( N.J.S.A. 2C:15-1); count four, possession of a handgun for an unlawful purpose ( N.J.S.A. 2C:39-4(a)); and count five, possession of a handgun without a permit ( N.J.S.A. 2C:39-5(b)).

D'Oro Jewelry Store in Union City. Upon the State's motion for waiver of juvenile jurisdiction seeking to try them as adults, a hearing was conducted on January 22, 23, and 24, 1992. At the completion of the hearing, the judge ordered both juveniles waived to adult court.

The two were tried separately. Defendant was tried first. On June 10, 1993, the trial judge held a Rule 8 (now N.J.R.E. 104(c)) hearing to determine the admissibility of: (1) statements made by defendant to Joel Maestre, a correction's officer at the Hudson County Youth House; and (2) the statement defendant gave to police on the night of his arrest. At the conclusion of the hearing, the judge ruled that both statements were admissible. Defendant's jury trial lasted six days and concluded on June 22, 1993, when the jury returned a verdict convicting defendant on all counts.

On August 4, 1993, defendant was sentenced to a term of life imprisonment with a thirty-year parole ineligibility period on count one, a term of eighteen years with a six-year parole ineligibility period on count three, ¹ and a term of five years on count five. The sentences were to run concurrently. For sentencing purposes, the judge merged count two into count one and count four into count five.

Defendant appeals, raising the following legal arguments:

POINT I

THE FAILURE OF DEFENSE COUNSEL OR THE COURT BELOW TO ADVISE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY ON HIS OWN BEHALF AT THE WAIVER HEARING REQUIRES THAT THE WAIVER RULING BE VACATED AND A NEW HEARING HELD. U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 10. (NOT RAISED BELOW).

POINT II

THE PROSECUTOR'S QUESTIONS DURING TRIAL AND COMMENTS DURING OPENING STATEMENTS AND SUMMATION ON DEFENDANT'S POST-ARREST SILENCE DENIED DEFENDANT HIS RIGHT TO REMAIN SILENT AND DEPRIVED HIM OF A FAIR TRIAL. U.S. CONST. AMEND. V, VI. XIV; N.J. CONST. ART. I, PARS. 1, 9, 10. (RAISED IN PART BELOW).

POINT III

THE PROSECUTOR'S IMPROPER QUESTIONS, AND IMPROPER REMARKS DURING SUMMATION, WERE SO EGREGIOUS THAT DEFENDANT WAS DEPRIVED OF A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 9. (RAISED IN PART BELOW).

A. The Prosecutor Commented on Defendant's Post Arrest Silence.

B. The Prosecutor Misstated The Law, Appealed To Emotion and Denied Defendant The Presumption Of Innocence.

C. The Prosecutor's Argument That The Ballistics Testimony And Other Physical Evidence Proved That Gamboa Was Telling The Truth Amounted To Testifying By The Prosecutor As A Ballistics And Crime Reconstruction Expert, Was Based On Facts Not In Evidence, And Resulted In Elaborate And Improper Vouching For Gamboa's Credibility By The State. (Not Raised Below).

D. The Prosecutor's Argument That The State Had Made No Plea Agreements or Promises to Gamboa In Exchange for His Statement And Testimony, Inviting The Inference That Gamboa Therefore Had No Interest In The Outcome Of This Trial, Was Misleading. In Addition Such Statements Amounted To Elaborate Vouching For The Credibility Of Gamboa. (Not Raised Below).

E. The Prosecutor Suggested to the Jury That Their Duty Was To Convict The Defendant. (Not Raised Below).

F. The Prosecutor Misstated The Testimony.

G. The Prosecutor's Representation That The Autopsy Photographs Constituted Eyewitness Testimony Was Improper.

H. The State Elicited Testimony Concerning Defendant's Impecuniosity. (Not Raised Below).

I. The State Elicited Testimony From Defendant Characterizing A State's Witness As A Liar.

POINT IV

THE TRIAL COURT DENIED DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL DUE TO ITS WOEFULLY INADEQUATE INSTRUCTION TO THE JURY ON THE LAW REGARDING HOW TO EVALUATE THE CREDIBILITY OF GAMBOA, AN ACCOMPLICE AND THE

                CHIEF PROSECUTION WITNESS AGAINST DEFENDANT.  IN ADDITION BASED ON THE FACTS OF THIS CASE, THE COURT SHOULD HAVE SUA SPONTE INSTRUCTED THE JURY THAT THE STATE COULD OFFER GAMBOA A PLEA AGREEMENT OR SENTENCE REDUCTION AFTER TRIAL.  ( U.S. CONST. AMENDS.  V, VI AND XIV;   N.J. CONST.  (1947), ART.  I, PARS. 1, 9 AND 10).  (NOT RAISED BELOW)
                

A. The Trial Court's Instruction To The Jury On "Expectation of Benefit" Was Totally Inadequate Since The Model Jury Charge On Accomplice Liability Was Required.

B. The Trial Court Should Have Sua Sponte Instructed The Jury That The State Had The Authority To Offer Gamboa A Plea Agreement Or Sentence Reduction After Defendant's Trial.

POINT V

THE COURT'S INSTRUCTIONS TO THE JURY WHICH ERRONEOUSLY DEFINED THE AFFIRMATIVE DEFENSE OF DURESS AND INCORRECTLY STATED THE STATE'S BURDEN OF PROOF AS TO DURESS; ERRONEOUSLY EXPLAINED THAT ACCOMPLICE LIABILITY COULD BE PROVED BY SHARED INTENT OR PARTICIPATION; AND ERRONEOUSLY INSTRUCTED THAT A KNOWING STATE OF MIND WAS SUFFICIENT TO PROVE ACCOMPLICE LIABILITY, DENIED DEFENDANT A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. 1, PAR, 1, 9, 10. (NOT RAISED BELOW).

A. The Instruction On Duress.

B. The Accomplice Liability Instruction Erroneously Allowed The Jury To Find Accomplice Liability Based On Either Shared Intent Or Actual Participation.

C. The Accomplice Liability Instruction Erroneously Allowed The Jury To Find Accomplice Liability Based On A Knowing Rather Than A Purposeful State Of Mind.

POINT VI

OTHER CRIMES EVIDENCE, CONSISTING OF TESTIMONY FROM A DETENTION OFFICER THAT DEFENDANT TRIED TO BRIBE HIM, AND TESTIMONY THAT DEFENDANT HAD DISTRIBUTED COCAINE TO THE CO-DEFENDANT, ADMITTED WITHOUT A HEARING AND WITHOUT LIMITING INSTRUCTIONS, DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).

POINT VII

DEFENDANT'S ALLEGED STATEMENTS TO A DETENTION OFFICER SHOULD HAVE BEEN EXCLUDED BECAUSE DEFENDANT WAS QUESTIONED BY THE OFFICER IN A CUSTODIAL SETTING WITHOUT THE BENEFIT OF MIRANDA WARNINGS AND IN THE ABSENCE OF COUNSEL. (RAISED IN PART BELOW).

POINT VIII

THE DOUBLE HEARSAY TESTIMONY OF DETECTIVE ANGERMAYER, RELATING WHAT HE WAS

TOLD BY GARCIA TELLING WHAT HE WAS TOLD BY GAMBOA, WAS INADMISSIBLE HEARSAY AND DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).

POINT IX

THE JUDGE ABUSED HIS DISCRETION IN SENTENCING THE 16-YEAR OLD DEFENDANT TO THE MAXIMUM SENTENCE FOR MURDER BECAUSE THE JUDGE DID NOT CONSIDER DEFENDANT'S LACK OF A PRIOR CRIMINAL RECORD OR HIS YOUTH AS MITIGATING FACTORS.

The co-defendant, Gamboa, testified on behalf of the State that he and defendant had met in school and had known each for about five months when on September 6, 1991, they carried out the armed robbery of the jewelry store. They had planned the robbery the day before with Carlos Cruz who gave defendant the gun. The plan was to tie up the owner, Andy Shum. Defendant was supposed to point the gun at the victim, getting him away from the alarm, while Gamboa tied him up. They planned to take Shum into the bathroom and then rob the store. According to Gamboa, defendant told him that he knew the owner and had previously sold him stolen jewelry.

On the day of the robbery, Gamboa was on the corner by the high school drinking with friends, when at about noon, defendant came along. They hung around talking to girls until about 3:30 p.m. At about 4:00 p.m., they walked to the jewelry store. Defendant had a black bag with the gun in it. Gamboa carried a bag containing the rope. When they arrived, Shum buzzed them in and defendant asked if he wanted to buy some jewelry. Shum said that he did. Defendant said they had to go get the jewelry and that they would be back later. They went to the store that first time to check for alarms. When they returned fifteen minutes later, defendant told Shum he had jewelry in the black bag. Defendant reached in the bag, took out the gun and shot Shum once in the neck from about three feet away, even though Shum had raised his hands. About three seconds later, defendant again shot Shum in the temple at an even closer range. Shum died as a result of a laceration and edema of the brain caused by that gunshot wound. Gamboa asked defendant why he had shot Shum, and defendant answered that he had to because he would recognize them.

Gamboa knew defendant had the gun and that there was going to be a robbery but maintained that shooting the man was not part of the plan. In his original statement to the Union City Police in September 1991, Gamboa had said that he did not know that defendant planned on bringing a gun to the robbery. However, in his subsequent statement on January 11, 1993, to the Hudson County Prosecutor's Office, Gamboa said that he knew about the gun and was there the night before the robbery when Cruz gave defendant the gun. A latent print lifted from the counter was identified as defendant's right palm print.

At trial, a detective testified that Javier Garcia had gone to another detective, who lived across the street from Garcia, and told him that he knew...