State v. Torres
| Decision Date | 25 January 2019 |
| Docket Number | DOCKET NO. A-0057-14T2 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANGEL T. TORRES, a/k/a ANGEL D. RAMOS, and ANGEL RAMOS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-03-0333 and 10-03-0340.
Joseph A. Fischetti, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Robert J. Kipnees, Designated Counsel, and Joseph A. Fischetti, on the briefs).
Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Nancy A. Hulett, of counsel and on the brief).
The opinion of the court was delivered by
O'CONNOR, J.A.D.
Defendant Angel T. Torres was convicted by a jury of first-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), of A.V.1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), of L.D.; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4. In a bifurcated trial, the same jury also convicted defendant of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b); this charge arose out of a separate indictment. In the aggregate, defendant was sentenced to a twenty-four year term of imprisonment.
Based upon our review of the record and applicable legal principles, we affirm defendant's convictions, but remand for resentencing.
We recount the evidence adduced at trial relevant to the issues on appeal. On August 18, 2009, defendant was informed his seventeen-year old son, AngelDiaz, had been assaulted by L.V, an adult. One of Angel's2 friends, co-defendant Axcel Diaz3, testified that he, Angel, defendant, and two others got into a white car to go to L.V.'s home. When he entered the car, defendant was wearing a hat. According to Axcel, a black vehicle with "many people" in it accompanied them to L.V.'s home, which was a building in which three families lived in three separate living quarters.
When the cars stopped in front of L.V.'s home, defendant stated, "get the man who's responsible." Defendant also told Axcel, whose parents lived in the same building as L.V., to get his parents into the basement. After he was inside the house, Axcel heard the sound of shattering glass followed by gunshots. Axcel observed that A.V. and L.D., two residents in the building, had been hit by bullets. Axcel testified "they" had fired shots through the door; it is not disputed the front door had six bullet holes in it. A.V. died from his gunshot wounds and L.D. survived.
One of the residents in the building, Angel Alvarado, testified he saw a black and a white vehicle pull up and stop. Axcel emerged from the white car, ran up to the house, and told his parents to get into the basement. Axcel also told Alvarado that he should "duck." When Alvarado asked for clarification, Axcel said, "it's already too late." L.K. testified he heard another resident in the building say that "he" had a gun. L.K. ran toward his living area in the building and, while doing so, observed A.V. struggling to keep the front door shut. L.K. then heard gunshots.
Another resident, Beatriz Rodriguez, testified she was standing on the front porch of the building when she saw a black and a white vehicle pull up and noticed two men approach the building. One was young and the other was "older." The older one, who she estimated was five feet tall, was wearing a hat and carrying a stick the size of a baseball ball. He slapped Rodriguez in the face as he passed her; she commented that, at that moment, the two were "face-to-face" and she was able to look directly at him.
He then smashed the glass on the outer, storm door of the building with the stick. The other man tried to kick in the front door. Meanwhile, Rodriguez ran across the street. She heard gunshots, but did not see who the shooter was. She saw one of the men run back to the white car and the other to the black car,and both vehicles drove off. There was evidence that, when arrested, defendant's height was determined to be five feet and one inch.
A few days after the incident, Rodriguez viewed photographs at a photo line-up. One of the photographs was of defendant and she stated the person in that particular photograph "jump[ed] out at her," but she was unable to definitively identify the person in the picture as defendant. She later saw a picture of defendant in a newspaper and notified the Prosecutor's Office the person in the picture was the man who slapped her at the crime scene. When she testified in court, Rodriguez pointed to defendant at counsel table and stated she was eighty percent sure he was the person who slapped her.
Before trial, defendant sought to preclude the admission of what transpired during the photo line-up. After a Wade4 hearing, the trial court denied defendant's motion. We detail the evidence adduced during the Wade hearing when we address the issues defendant asserts concerning the denial of his motion.
As noted, the jury convicted defendant of the reckless manslaughter of A.V., the aggravated assault of L.D., and related gun offenses. He was acquitted of the following offenses: A.V's murder, N.J.S.A. 2C:11-3(a)(1), (2), L.V.'sattempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a)(1), (2), and conspiracy to commit L.V.'s murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1), (2).
On appeal, defendant raises the following points for our consideration.
For the first time on appeal, defendant contends the trial court erred when it instructed the jury to consider the lesser-included offense of reckless manslaughter to the charge of murder. Defendant asserts the evidence revealed the shooter deliberately fired six shots into the front door of L.V.'s home, behindwhich people had just retreated. Defendant reasons such acts were indicative of an intent to kill and, thus, cannot be consistent with acting recklessly.
During the charge conference, the court announced it would be charging "on some lesser included offenses, particularly on the murder charge" and asked if either party had an objection. Defense counsel answered in the negative. Because there was no objection to the charge, our review requires we apply the "plain error" rule. R. 2:10-2; State v. Montalvo, 229 N.J. 300, 320-21 (2017). Plain error in this context means there existed a "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
Our Supreme Court has held that "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Thomas, 187 N.J. 119, 132 (2006) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)); see State v. Denofa, 187 N.J. 24, 41-42 (2006). The rationale for imposing such an obligation on the trial court is that"[n]o defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record." State v. Garron, 177 N.J. 147, 180 (2003). The danger of prejudice to a defendant that may result from a trial court's failure to charge a lesser-included offense to the jury is that "[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." State v. Sloane, 111 N.J. 293, 299 (1988) (quoting Keeble v. United States, 412 U.S. 205, 212-13 (1973)).
Reckless manslaughter is a lesser-included offense of murder. State v. Ramsey, 415 N.J. Super. 257, 263-64 (App. Div. 2010). Criminal homicide constitutes reckless...
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