State v. Galvez

STATE OF NEW JERSEY, Plaintiff-Respondent, v. OMAR GALVEZ, a/k/a ORLANDO ROMERO, OMAR GAULEZ, Defendant-Appellant.

DOCKET NO. A-2121-16T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued March 12, 2018

May 17, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 15-06-0680.

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Joshua D. Sanders, of counsel and on the brief).

Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jane C. Schuster, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Omar Galvez appeals from his conviction and sixty-five-year sentence for first-degree murder, N.J.S.A. 2C:11-3(a)(1), following a jury trial. Defendant also appeals the trial court's order requiring he pay $4,885 in restitution. Based on our review of the record in light of the applicable law, we affirm defendant's conviction and custodial sentence, and remand for reconsideration of the restitution order.

I.

Defendant and co-defendant Jose H. Martinez were indicted for one count of first-degree murder, N.J.S.A. 2C:11-3(a)(1). The indictment also charged Martinez with third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). The court severed Martinez's charges, and he had no involvement in defendant's subsequent trial. Martinez pleaded guilty to aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1), and was sentenced to a twenty-year custodial term subject to the requirements of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Prior to his trial, defendant moved to suppress statements he made during a September 10, 2014 interrogation by a New Jersey State Police detective. Following an evidentiary hearing on themotion, the court denied defendant's request to suppress his statements.¹ The matter subsequently proceeded to trial.

The trial evidence showed that on August 24, 2014, a hunter reported finding a woman's body in a wooded area in Millville. New Jersey State Police detective John Weber responded and observed the victim "sustained severe injuries to the head area." The State Police photographed and processed the scene, and assisted in the Medical Examiner's Office's removal of the body for an autopsy.

The State Police questioned a witness who said she attended a birthday party with the victim on August 23, 2014. The witness said the victim was intoxicated and interested in smoking crack. The witness explained the victim had a history of prostitution, often stole money from Mexican males, and told the witness at the party she was going to "depart with a Mexican male or two Mexican males."

Another witness testified he attended the birthday party, and saw the victim there on the night she was murdered. The witness saw the victim leave "in a white van with two" Mexican men.

A third witness testified she attended the birthday party and knew defendant personally. She said defendant attended the party, and she saw him leave with an individual named "Alberto" and "a white lady."²

The autopsy conducted by Medical Examiner Dr. Ian Hood revealed that the victim suffered significant and multiple injuries to her head and face. Dr. Hood testified the majority of the victim's injuries were "not made with a padded object, like a fist," but rather, "something hard enough to lacerate skin and break bone." Dr. Hood testified that a hammer likely caused most of the injuries, and the other injuries could have resulted from blows from a "shod foot, a boot," or a sneaker. Dr. Hood concluded the combination of the blows "likely caused [the] final mechanism of death by inability to breathe through [the] face."

At trial, the State played the video and audio recording of defendant's September 10, 2014 interrogation,³ during which defendant admitted attending the birthday party and leaving with the victim and Martinez in Martinez's van. Defendant said Martinez drove to a secluded wooded area, and he remained in the vehiclewhile Martinez and the victim had a sexual encounter outside the van.

Defendant explained Martinez said the victim stole from him, and defendant then exited the van and grabbed the victim by the shoulders. According to defendant, Martinez went to the van, and returned and hit the victim in the head with a hammer. Defendant asserted that he no longer held the victim after the hammer's first blow, but he kicked the victim one time as she laid on the ground. Defendant said Martinez repeatedly struck the victim with the hammer after she fell to the ground. Defendant and Martinez fled the scene in the van, leaving the injured victim behind.

The jury found defendant guilty of first-degree murder. At defendant's sentencing proceeding, the court found aggravating factors one, the nature and circumstances of the offense, defendant's role in the commission of the offense, and whether it was committed in an especially heinous, cruel or depraved manner, N.J.S.A. 2C:44-1(a)(1); three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court did not find any mitigating factors. See N.J.S.A. 2C:44-1(b). The court determined the aggravating factors substantially outweighed the non-existent mitigatingfactors, and sentenced defendant to a custodial term of sixty-five years subject to the requirements of NERA. The court also directed that defendant pay $4,885 in restitution to the Victim of Crimes Compensation Office. This appeal followed.

Defendant's counsel presents the following arguments for our consideration:

POINT I

THE JURY CHARGE RELATIVE TO [DEFENDANT'S] STATEMENT WAS INSUFFICIENT TO ADVISE THE JURY OF THE NEED TO CRITICALLY AND EFFECTIVELY EVALUATE HIS STATEMENT IN LIGHT OF THE REALITY THAT JURORS HAVE GREAT DIFFICULTY DISTINGUISHING BETWEEN FALSE CONFESSIONS AND TRUE CONFESSIONS. U.S. CONST. AMEND. VI; N.J. CONST. ART. I, PAR. 10.

POINT II

GIVEN THE DISPARITY BETWEEN [DEFENDANT'S] SENTENCE AND THAT OF HIS MORE CULPABLE CO-DEFENDANT, REMAND FOR RESENTENCING UNDER STATE V. ROACH IS NECESSARY.

In his pro se brief, defendant makes the following arguments:

POINT I

GIVEN THE DISPARITY BETWEEN [DEFENDANT'S] SENTENCE OF N.J.S.A. 2C:11-3(a)(1) OF MURDER, FOR A CONVICTION OF 65 YEAR[S] 85% AND THAT OF HIS CO-DEFENDANT JOSE MARTINEZ TO MANSLAUGHTER FOR A 20 YEAR TERM [], WHO IS ACTUALLY MORE CULPABLE THAN INSTANT DEFENDANT. RESENTENCING IS APPROPRIATE BECAUSE THERE WAS NO INDICTMENT FOR A CHARGE OF ACCOMPLICE LIABILITY [] TO PROVIDE NEXUS TO A CONVICTION OF MURDER [] AGAINST [DEFENDANT]. FURTHER, CONTRARY TO THE COURT'S DICTUM THAT "THE

DEFENDANT IS A REPETITIVE OFFENDER" [] THE COURT DID NOT HAVE THE EXTENDED TERM ELIGIBILITY REQUIRED BY R. 3:21-4(e), BECAUSE THE DEFENDANT DOES NOT FALL UNDER THE THREE-STRIKES-LAW, NOR UNDER THE PERSISTENT OFFENDER STATUTE. BECAUSE HE ONLY HAD "ONE INDICTABLE CONVICTION" [] AT THE TIME OF SENTENCING. CHANGE OF SENTENCE IS APPROPRIATE TO VACATE THE CHARGE OF MURDER. BECAUSE THE DEFENDANT'S CONDUCT OF "ONE KICK" [] ONLY PLACES CRIMINAL LIABILITY NEXUS TO THE LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT []. RESENTENCING IS REQUIRED BY NOVATION TO A CHARGE OF N.J.S.A. 2C:12-1(a)(1) IN A NEW ENTRY OF A JUDGMENT OF CONVICTION TO SATISFY THE CONVICTION AT TIME SERVED[.]

A. The court did not have the enhanced punishment available by either persistent offender nor by the three strikes law.

POINT II

IMPOSITION OF DEFENDANT'S SENTENCE BEYOND THE STATUTORY MAXIMUM BASED ON JUDICIAL FACT-FINDING OF AGGRAVATING FACTORS 3, 6, 9 [] WHICH W[]ERE NEVER ADMITTED TO BY DEFENDANT [] OR SUBMITTED TO A JURY [] AND PROVED BEYOND A REASONABLE DOUBT VIOLATED BOTH HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS, BECAUSE HE DOES NOT HAVE A PRIOR CONVICTION OF "SIMILAR NATURE" THAT ESTABLISHES A POINT OF ORIGIN TO ASSERT ANY AGGRAVATING FACTORS AS PRIMA FACIE EVIDEN[CE] IN HIS COURT HISTORY [].

POINT III

THE SENTENCE IMPOSED BY THE COURT, I.E. 65 YEAR[S] 85% [] VIOLATES THE SPIRIT AND INTENT OF THE CODE OF CRIMINAL JUSTICE, THUS, RENDERING DEFENDANT'S SENTENCE ILLEGAL.

POINT IV

THE IMPOSITION OF FINES AND RESTITUTION [] W[]ERE IMPOSED ILLEGALLY WITHOUT HOLDING A HEARING FOR A[B]ILITY TO PAY, REQUIRES REVOCATION OF THE REMAINING FINES AND RESTITUTION, AND TO REIMBURSE TO DEFENDANT ALL AMOUNTS COLLECTED.

II.

Defendant argues the judge erred by failing to charge the jurors concerning how they must "receive, analyze, and weigh" defendant's statement to the police as required by the Court in State v. Hampton, 61 N.J. 250 (1972). The State contends the court instructed the jury concerning defendant's statement "exactly as defendant" requested, and the failure to give a Hampton charge did not amount to reversible error because defendant's "whole theory of the case was that his statement was reliable and should be believed by the jury."

Although a Hampton charge must be given regardless of "[w]hether [it is] requested or not," failure to give the charge is "not reversible error per se." State v. Jordan, 147 N.J. 409, 425 (1997). A trial court's omission of a Hampton charge "imposes a significant burden on the State to demonstrate that such an error is not plain error." Id. at 430; see State v. Anthony, 443 N.J. Super. 553, 570 (App. Div. 2016) (citing Hampton, 61 N.J. at 272, and noting that "[t]he critical role of the jury in...