State v. Gutierrez

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN J. GUTIERREZ, a/k/a JOHN GUIERREZ, Defendant-Appellant.

DOCKET NO. A-3002-17T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted September 9, 2019

December 5, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Rothstadt and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 16-07-0930.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John J. Gutierrez appeals from the Law Division's judgment of conviction that the trial court entered after a jury acquitted defendant of manslaughter but convicted him of aggravated assault and possession of a controlled dangerous substance (CDS). He also appeals from his aggregate sentence of seven years. At trial, the evidence established the victim died after being beaten by defendant.

On appeal, defendant argues that the trial court should not have admitted into evidence statements he made to police, and for the first time on appeal, he contends that it was plain error for the trial court to not instruct the jury about their consideration of defendant's statements in accordance with the Model Jury Charges. He also contends that he was deprived of a fair trial by the prosecutor's misstatements made during summation. Finally, defendant argues that in imposing its sentence, the trial court improperly rejected all but one mitigating factor. For the reasons that follow, we reject defendant's contentions and affirm.

I.

Defendant's conviction arose from a fight he engaged in with the victim, a friend of his, on October 10, 2015.¹ According to defendant, who testified attrial, just prior to the beginning of the fight, defendant had been smoking phencyclidine (PCP) with the victim and other friends in defendant's car. During the ensuing altercation that started inside the car, the victim struck defendant in the head, hit him in the face, and took hold of him by his neck, while defendant was defending himself against the victim.²

After the fight, a meter attendant observed defendant walking near a car and using a bottle of water in attempt to wash blood off his hands. The meter attendant alerted the police and Officer David Tafer responded to the scene. Upon his arrival, Tafer found defendant in the car with an injury to his eye and a scratch to his face, and another individual who appeared to be unconscious, if not dead, on the floor of the car.

Tafer removed defendant from the vehicle, placed him under arrest, and handcuffed him, before placing him in the back of Tafer's police vehicle. Defendant did not make any statements to Tafer nor did Tafer ask him any questions.

A police detective, Michelle Aviles, joined Tafer at the scene. Upon her arrival, she observed defendant laying down in the back of the police car. When she checked to see if "he was okay," defendant spontaneously stated that he had gotten into a fight with "Eddie." Aviles, not knowing that "Eddie" was the victim in defendant's car, asked defendant where "Eddie" was located at the time. Defendant responded that he was "in [my] car." Defendant also stated he was "never doing PCP again."

Moments later, an emergency medical technician (EMT) arrived with an ambulance. As the EMT approached, defendant stated the victim "got crazy on PCP." Defendant was then taken to the hospital. He was accompanied in the ambulance by then police officer Ramy Hanna. In the ambulance, Hanna never asked defendant any questions. However, defendant spontaneously asked Hanna where the victim was and stated that the two of them "got too excited . . . [,] got in an argument," and defendant "fucked [the victim] up," after they "smoked too much PCP." In response, Hanna "advised him to hold all his questions for detectives, and [that Hanna did not] have any answers for him, and to only answer the medical questions that was being asked by the EMT."

While defendant was being transported to the hospital, another police officer conducted a search of the vehicle where defendant was found. Theofficer observed the victim's lifeless body, took photographs, and helped remove the body. A vile of PCP was also recovered from the vehicle.

Dr. Leah Cronin, the medical examiner, conducted an autopsy of the victim on October 13, 2015. The doctor observed bruises and scrapes on the body, including near the victim's eyes, legs, chest, on his fingers, and neck. She also noted that the victim suffered from coronary heart disease and had suffered a heart attack on an earlier occasion.

The doctor did not reach a conclusion as to the cause of death and only indicated that the determination was pending, although the doctor advised a detective that she did not believe the victim's death was caused by the bruises and abrasions she found on his body. In order to help reach a conclusion as to the cause of death, Cronin requested a consult with a neuropathologist as to the condition of the victim's brain.

A neuropathologist, Dr. Leroy Sharer, conducted an examination of the victim's brain that revealed hemorrhaging. Sharer concluded there was only a mild injury to the brain that occurred less than twenty-four hours before the victim expired, but that it was neither significant nor the cause of death.

Toxicology testing of the victim revealed that the PCP level in his blood exceeded the toxic range but had not reached a fatal level. There was also evidence that the victim had taken medication used to treat seizures.

After reviewing these additional reports, Cronin concluded that the victim's death was a homicide and the cause of death was a blunt impact to the head. She would not opine as to what type of blunt force occurred or the time of the victim's death. Cronin also identified PCP intoxication, hypertension, and heart disease as contributory factors. According to the doctor, the victim's use of PCP could have caused the victim's heart, which she found to be enlarged, to "work harder" than normal. She further explained that the victim's hypertension had impacted his kidneys and his earlier heart attack made him prone to ventricular fibrillation, but that could not be detected by the autopsy.

In 2016, a grand jury returned an indictment charging defendant with second-degree manslaughter, N.J.S.A. 2C:11-4(b)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); and with third-degree possession of CDS (PCP), N.J.S.A. 2C:35-10(a)(1) (count three). Prior to defendant's trial, the State filed motions to admit statements made by defendant. After conducting hearings, on July 31, 2017, the trial court granted in part and denied in part one motion, and on September 28, 2017, it granted the other.

The trial took place over nine days in October 2017. At its conclusion, the jury acquitted defendant of manslaughter, but convicted him of aggravated assault and possession of CDS. At sentencing, the trial court imposed the aggregate seven-year term, subject to a parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.

On appeal, defendant asserts the following contentions:

POINT I

THE CUSTODIAL STATEMENTS MADE BY DEFENDANT TO POLICE WERE IN VIOLATION OF HIS RIGHT AGAINST SELF-INCRIMINATION AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.

POINT II

THE FAILURE OF THE TRIAL COURT TO GIVE HAMPTON AND KOCIOLEK³ JURY INSTRUCTIONS WAS PLAIN ERROR. (NOT RAISED BELOW).

POINT III

MISSTATEMENTS OF FACT AND LAW BY THE PROSECUTOR DURING HIS SUMMATION WERE UNDULY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT IV

BECAUSE THE SENTENCING COURT ERRONEOUSLY REJECTED CERTAIN MITIGATING FACTORS IN IMPOSING A NERA SENTENCE OF SEVEN (7) YEARS, DEFENDANT'S SENTENCE MUST BE MODIFIED AND REDUCED.

We are not persuaded by any of these arguments.

II.

Defendant's first argument relates to the trial court's admission of the statements defendant made to police prior to his arrival at the hospital and before he received any Miranda⁴ warnings. After conducting an evidentiary hearing under Rule 104, the trial court found the statements were made while defendant was in police custody, but it concluded they were not made in response to any police interrogation and were therefore admissible. Specifically, as to Aviles's question about where "Eddie" was, the trial court concluded that the officer could not have anticipated defendant's identification of "Eddie" as the victim lying in his car when she asked her question.

Defendant argues that Aviles questioning defendant about the victim's location, her and Hanna's knowledge that defendant was under the influence ofPCP, which impaired his mental and physical condition, and that defendant was injured, warranted the suppression of the statements. We disagree.

Our review of a trial court's grant or denial of a motion to suppress a defendant's statement is deferential. State v. Vincenty, 237 N.J. 122, 131-32 (2019). If a trial court's findings are supported by sufficient, credible evidence present in the record, our "task is complete and [we] should not disturb the result." State v. Johnson, 42 N.J. 146, 162 (1964). In contrast, we review de novo a trial court's legal conclusions. State v. Hubbard, 222 N.J. 249, 263 (2015).

It is beyond cavil that Miranda warnings are designed to protect an individual's Fifth Amendment right to remain silent when confronted with a criminal charge and exposure to police interrogation. "Miranda safeguards come into play whenever someone is subject either to express questioning 'or its...