State v. Vargas

• Decision Date: 04 June 2020
• Docket Number: DOCKET NO. A-2152-17T1
• Citation: 233 A.3d 624,463 N.J.Super. 598
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Sandro VARGAS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

463 N.J.Super. 598

233 A.3d 624

STATE of New Jersey, Plaintiff-Respondent,

v.Sandro VARGAS, Defendant-Appellant.

DOCKET NO. A-2152-17T1

Superior Court of New Jersey, Appellate Division.

Submitted November 4, 2019

Decided June 4, 2020

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).

Before Judges Messano, Ostrer and Vernoia.

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 Miranda ¹ 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.

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 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 with 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 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.

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 had 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 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.

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, 175 A.3d 953 (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, 29 A.3d 320 (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, 605 A.2d 230 (1992).⁴ The court 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...