STATE OF NEW JERSEY VS. EDGAR TORRES(12-09-1539, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5901-13T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDGAR TORRES, a/k/a TORRES EDGAR and
TORRES C# 245239 EDGAR,

Defendant-Appellant.
____________________________

Submitted March 22, 2017 – Decided May 31, 2017

Before Judges Accurso and Lisa.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment
No. 12-09-1539.

Joseph E. Krakora, Public Defender, attorney
for appellant (Frank M. Gennaro, Designated
Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica
do Outeiro, Assistant Prosecutor, of counsel
and on the brief).

Appellant filed a pro se supplemental brief.
PER CURIAM

Defendant Edgar Torres was charged in a single superseding

indictment with five armed bank robberies on different dates

between 2006 and 2011. His motion to exclude statements to the

police he made on February 25 and March 11, 2011 was denied.

But his motion to sever and try separately each armed robbery

was granted in part, with the court ordering the three armed

robberies occurring in 2010 and 2011 severed and tried

separately from the two robberies in 2006 and 2009.

The more recent bank robberies were tried first. Defendant

was convicted of all three robberies and sentenced in the

aggregate to an extended term of forty years in State prison

subject to the periods of parole ineligibility and supervision

required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

We affirmed, rejecting defendant's arguments that the court

erred in denying his motions to exclude his statements to police

and to sever and try each armed robbery standing alone. State

v. Torres, No. A-3096-12 (App. Div. May 7, 2015) (slip op. at 6-

7, 14-16). The Supreme Court subsequently denied defendant's

petition for certification. State v. Torres, 223 N.J. 556

(2015).

In the second trial, a jury convicted defendant of first-

degree robbery, N.J.S.A. 2C:15-1, and second-degree possession

2 A-5901-13T4
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, in

connection with the 2006 bank robbery; and second-degree robbery

in connection with the 2009 robbery, acquitting him of the

attendant weapons offense. The same judge presided over both

trials and sentenced defendant on these convictions, after

merger, to a twenty-year NERA term on the first-degree robbery

and to a consecutive ten-year NERA term on the second-degree

robbery, consecutive to the forty-year, extended-term sentence

defendant is already serving in connection with the first three

robberies.

Defendant appeals, raising the following issues through

counsel.

I. THE TRIAL COURT ABUSED ITS DISCRETION
BY DENYING DEFENDANT'S REQUEST TO
REVISIT THE DECISIONS ON THE MIRANDA
AND SEVERANCE OF OFFENSES MOTIONS.

II. THE TRIAL COURT'S REFUSAL TO REDACT
FROM DEFENDANT'S STATEMENT TO POLICE
REFERENCES TO HIS DRUG USE DENIED
DEFENDANT A FAIR TRIAL.

III. THE TRIAL COURT ERRED BY DENYING
DEFENDANT'S JUDGMENT OF ACQUITTAL AND
NEW TRIAL MOTIONS.

IV. THE TRIAL COURT'S RULING ON THE USE OF
THE VIDEO PORTION OF DEFENDANT'S
STATEMENT TO POLICE CHILLED HIS RIGHT
TO TESTIFY ON HIS OWN BEHALF.

V. DEFENDANT RECEIVED AN EXCESSIVE
SENTENCE.

3 A-5901-13T4
He adds the following issues in his pro se supplemental brief.

Point 1

The Trial Court error in dismissing the
original presentation from May 9, 2011.

Point 2

The presentation of May 23, 2011 should have
been dismissed as defective because the
State failed to present sufficient evidence
of one or more elements of each charged
offense.

Point 3

The presentation from May 23, 2011 was
defective because the prosecutor infringed
upon the grand jury's decision making
process.

Point 4

The Trial Court error in not granting
defendant motion to dismiss indictment based
on prosecutorial misconduct.

Point 5

The Trial Court error in granting the
State's superseding indictment based on a
decision that had no merit on the motion at
hand.

Point 6

The prosecutor gave the Trial Court
misrepresentation by stating that in the
second grand jury presentation on May 23,
2011 that, that grand jury re-voted to
indict defendant on first degree armed
robbery.

4 A-5901-13T4
 Point 7

The prosecutor sought a superseding
indictment that increased the punishment
after defendant invoked his right to a jury
trial.

Point 8

The State gave misrepresentation to the
Trial Court that the initial indictment was
a first degree armed robbery and second
degree possession of a weapon for an
unlawful purpose. By doing so the State
misinformed the Trial Court to the facts.

Point 9

The State sought a superseding indictment in
retaliation because defendant informed the
Trial Court that defendant was not indicted
to a first degree crime as it was drafted in
the initial indictment.

Point 10

The Trial Court erred in allowing the State
to seek a superseding indictment based on
the same facts that were presented on the
initial indictment to obtain a higher degree
then the original indictment and "up the
ante."

Because our review of the record convinces us the judge did

not err in ruling on any of the motions defendant challenges,

and his pro se arguments as to the indictment are without

sufficient merit to warrant discussion in a written opinion, R.

2:11-3(e)(2), we affirm his convictions. For reasons explained

below, however, we remand for a new sentencing hearing.

5 A-5901-13T4
 The State presented the testimony of two bank tellers, each

of whom testified they were robbed, one in 2006 and the other in

2009, by a man of medium build, average height, who approached

their stations with a plastic bag and a black gun and demanded

large bills. Although a witness saw a man he had earlier seen

get out of a red car, run from the bank following the 2006

robbery, and police recovered the plastic bag the robber carried

and a pellet gun in pieces near a dumpster behind the bank,

investigators made no headway in identifying the perpetrator of

either heist.

Both crimes went unsolved until 2011, when defendant was

arrested in connection with the later three robberies.

Following defendant's February 25, 2011 statement, in which he

confessed to the three robberies in 2010 and 2011 while armed

with a pellet gun, investigators decided to question him about

other unsolved robberies, including the one from 2006. On March

11, 2011, defendant gave another statement in which he again

confessed to the three robberies in 2010 and 2011 and also

confessed to the 2006 and 2009 robberies.

In his second statement, defendant advised the

investigators he was aware they had already talked to the person

who owned the red car he borrowed for the 2006 robbery. He

admitted having his girlfriend drive and wait for him while he

6 A-5901-13T4
robbed both banks but insisted "she had no clue what . . . was

going on." Defendant claimed he "told her[,] . . . look I'm

picking [up] some dope, just, we got to meet him over here."

When the detective sought to clarify that defendant's girlfriend

had no involvement in the robberies and, instead believed she

was driving defendant to pick up drugs, defendant replied:

That was the whole thing...I never wanted
her involved in anything I was doing. I
didn't want her to have any knowledge of
what I was doing so I would lie to her and
tell her, yo I'm gonna go pick up, I need
you to drive cause I don't feel good to be
driving. . . . I don't need to get pulled
over.

Defendant also claimed that while he could not remember

whether he was armed when he committed the 2009 robbery, he

allowed he "probably had [a gun]" but could not say he "flashed

it." When the detective asked what kind of gun would he have

been carrying, defendant replied, "Been a pellet gun. Never,

never, never, anything I've ever done was actually with an

actual gun." Defendant claimed he did not carry a real gun

because "I don't need a trigger to go off and somebody getting

accidently killed." "My intentions was solely one thing[,] get

the money[,] get the fuck out, go get high[,] . . . see what

tomorrow brings."

7 A-5901-13T4
 In advance of defendant's second trial, new counsel moved

to revisit the court's prior rulings on the admissibility of

defendant's confessions and severance. Counsel argued the March

11 statement was taken in violation of State v. Tucker, 137 N.J.

259 (1994), cert. denied, 513 U.S. 1090, 115 S. Ct. 751, 130 L.

Ed. 2d 651 (1995), because defendant was in custody and had

already been assigned counsel on the 2010-2011 armed robbery

charges and thus should not have been questioned without counsel

present. As to severance, defendant claimed there was no

connection between the 2006 and 2009 robberies, and the only

direct evidence linking defendant to the 2009 robbery was his

confession. Counsel argued trying the two crimes together

risked the jury convicting defendant of the 2009 robbery because

it believed him guilty of the 2006 heist.

After hearing argument, the court declined to revisit

either ruling. The judge noted he had considered defendant's

motion to exclude his confessions before ruling on his severance

motion, and thus considered both confessions as they related to

all five robberies. The judge concluded both rulings were the

law of the case, and that defendant had not offered a persuasive

reason for the court to reconsider either decision.

Defendant also moved to redact his March 11 confession to

remove any references to his drug use and that he was a heroin

8 A-5901-13T4
addict. The court ordered several references to drugs removed,

but agreed with the prosecutor that defendant's statements

regarding the lies he told his girlfriend to avoid her learning

that he intended to rob a bank did not relate to "prior bad

acts. It's his statement of what occurred that day, why and how

it occurred." Accordingly, those statements were not redacted

but included in the recording of the confession played for the

jury.

Finally, defendant moved to prohibit the State from playing

the video portion of the March 11 confession because he was

arrayed in prison garb. The court granted the motion, but

noted:

If the defendant gets on the stand, and
attempts to come up with the same story
he came up with the in the first trial,
which the jury did not believe, which is
that the detectives were riding him around
force-feeding him facts, then I will with
a curative instruction permit the State to
use the video of this confession on rebuttal.
Because it does clearly show the defendant's
demeanor, and the manner of delivery of his
statements, and the confession.

Although defendant did not object at the time, he moved

several days later for the judge to recuse himself pursuant to

Rule 1:12-1(d), for having expressed a view of the proofs in the

first trial. Defendant claimed the court's statements as to

defendant's credibility could affect defendant's theory in the

9 A-5901-13T4
second trial and compromise his right to testify in his own

defense.

In denying the motion, the judge stood by his assessment of

the proofs in the first trial, but noted the cases were

"[c]ompletley different, that's why they're severed." The judge

reiterated his ruling that the video portion of the March 11

confession would be excluded at defendant's request. But should

defendant contend at trial that his confession was coerced, the

video would become "evidential" as depicting his demeanor and

the manner in which he made the statement to the police.

Following the guilty verdict, defendant filed a motion for

judgment of acquittal, or, in the alternative, for a new trial.

He argued the State failed to present legally sufficient

evidence to corroborate his confessions; that he should have

been afforded a new suppression hearing to determine whether the

police engaged in an impermissible "question-first, warn-later"

interrogation; that his March 11 statement should have been

excluded on Sixth Amendment grounds; and that the court should

have reconsidered its prior ruling, granting his motion to sever

and try separately the 2006 and 2009 robberies.

The court denied the motions. The judge found the State

provided additional evidence beyond defendant's own confession

as to both the 2006 and 2009 robberies, and thus any

10 A-5901-13T4
inconsistencies between the confession and the State's other

evidence were properly submitted for the jury's consideration.

The judge again determined his prior ruling to exclude

defendant's statements was the law of the case and given the

absence of any "new or overriding circumstance," defendant was

not entitled to a second hearing to determine whether the police

engaged in an impermissible "question-first, warn-later"

interrogation. The court further found defendant's Sixth

Amendment right to counsel regarding the 2006 and 2009 robberies

had not attached at the time of his March 11 statement because

those crimes were not the same offenses for which defendant was

then in jail, nor based on the same facts.

Finally, the judge found defendant was not entitled to re-

litigate the court's decision to sever the counts of the

indictment relating to the five robberies for two trials

corresponding to his two separate confessions to the crimes.

The judge found defendant had "failed to set forth any new

evidence, circumstances, or controlling authority," or otherwise

demonstrate that the initial ruling was clearly erroneous or

contributed to a manifest injustice.

Subsequent to the court's ruling on the post-trial motions,

we affirmed its decisions to admit defendant's statements and to

sever the counts of the indictment for two trials. Torres,

11 A-5901-13T4
supra, slip op. at 6-7, 14-16. Accordingly, defendant's

arguments regarding the involuntariness of his March 11

statement as having been the product of an impermissible

"question-first, warn-later" interrogation,1 and the failure to

try the 2006 and 2009 robberies separately, are barred both by

collateral estoppel and the law of the case doctrine because

another panel of this court rejected them on the merits in

defendant's prior appeal. See State v. K.P.S., 221 N.J. 266,

276-78 (2015) (distinguishing between collateral estoppel and

law of the case); see also Lombardi v. Masso, 207 N.J. 517, 539-

40 (2011) (explaining application of the law of the case

doctrine in connection with appellate proceedings); State v.

Myers, 239 N.J. Super. 158, 164 (App. Div.), certif. denied, 127

N.J. 323 (1990); State v. Hale, 127 N.J. Super. 407, 410 (App.

Div. 1974) ("'Law of the case' most commonly applies to the

binding nature of appellate decisions upon a trial court if the

matter is remanded for further proceedings, or upon a different

1
As we have available to us the brief defendant filed in support
of his appeal from the first trial, we have confirmed he argued
at length that State v. O'Neill, 193 N.J. 148 (2007), condemning
the two-step "question-first, warn-later" interrogation
technique, should have rendered his "formal statements"
inadmissible and that "the trial court erred in failing to sever
the five bank robbery counts and order separate trials for each"
because of the likelihood "the jury would conclude he was guilty
of all the crimes than had separate trials been held."

12 A-5901-13T4
appellate panel which may be asked to reconsider the same issue

in a subsequent appeal.").

As to the new issue defendant raised regarding his March 11

statement, that because he had already been assigned counsel on

the 2010-2011 robbery charges, he should not have been

questioned on the 2006 and 2009 robberies without counsel

present, we agree with the trial court that defendant's Sixth

Amendment rights were not violated. Although there is no

question but that defendant's right to assistance of counsel in

connection with the 2010-2011 robberies had already attached at

the time of his March 11 statement, Sixth Amendment protection

"is 'offense specific' in its attachment." State v. Harris, 181

N.J. 391, 435 (2004) (quoting Texas v. Cobb, 532 U.S. 162, 164,

121 S. Ct. 1335, 1338, 149 L. Ed. 2d 321, 326 (2001)), cert.

denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898

(2005).

Defendant's Sixth Amendment right to counsel had not

attached to the 2006 and 2009 bank robberies at the time of his

March 11 statement simply because he had been charged with other

bank robberies committed in 2010 and 2011. The interrogation

makes clear the detectives questioning defendant were not even

aware of the 2009 robbery when defendant confessed to it.

Because the 2006 and 2009 robberies were committed well before

13 A-5901-13T4
the offenses with which defendant had been charged, occurred in

different towns, involved a different car and apparently a

different gun, we agree with the trial judge that they were not

so factually related to the charged offenses as to bar

defendant's interrogation on the unsolved 2006 and 2009

robberies. See Harris, supra, 181 N.J. at 435-36.

We find no abuse of discretion in the trial court's

decision to permit limited references to defendant's drug use to

remain in his March 11 statement played for the jury. See State

v. Rose, 206 N.J. 141, 157 (2011). Although the trial judge at

one point referred to those unredacted references as evidence of

motive, which would make them inadmissible, see State v. J.M.,

Jr., 438 N.J. Super. 215, 223 (App. Div. 2014), aff'd as

modified, 225 N.J. 146, 151 (2016), he quickly corrected the

error. The judge subsequently made plain in ruling on

defendant's application to strike the references, that he would

not redact those statements in which defendant explained how he

tricked his girlfriend into driving the getaway car by telling

her he was meeting his drug dealer because they related to "what

occurred that day."

The unredacted statements explain defendant's scheme to

keep his girlfriend in the dark in order to get to and from the

robberies, which facilitated his commission of the crime.

14 A-5901-13T4
Indeed, defendant told his interrogators he chose the banks to

boost the credibility of his story, as they were on the route he

traveled to buy drugs. Thus we conclude the references were

properly admitted as intrinsic evidence of the crimes and were

not unduly prejudicial to him. See Rose, supra, 206 N.J. at

177-78, 180-82 (explaining that "uncharged acts performed

contemporaneously with the charged crime may be termed intrinsic

if they facilitate the commission of the charged crime" (quoting

United States v. Green, 617 F.3d 233, 249 (3d Cir. 2010))).

As we have already explained why the trial court did not

err in refusing to revisit its prior rulings on the

admissibility of defendant's confessions and severance, the only

two grounds raised in the motion for new trial, it requires no

further discussion. We turn to defendant's motion for

acquittal, based on the State's failure to adequately

corroborate his confession.

To avoid the danger of convicting a defendant solely on the

basis of his or her own words, the State must introduce

independent proof of facts and circumstances that strengthen or

bolster a confession and tend to generate a belief in its

trustworthiness, plus independent proof of loss or injury.

State v. Reddish, 181 N.J. 553, 617-18 (2004). The Supreme

Court has instructed, however, that trial courts should deny a

15 A-5901-13T4
motion for acquittal on such grounds if the State introduces

"any legal evidence, apart from the confession of facts and

circumstances, from which the jury might draw an inference that

the confession is trustworthy." Id. at 617 (quoting State v.

Lucas, 30 N.J. 37, 62 (1959)).

Applying that standard here, we are satisfied defendant's

motion for acquittal was properly denied. The testimony of the

tellers established the facts of the robberies and proof of

loss. The State produced additional evidence of the 2006

robbery in the form of the borrowed red car, driven by a woman

matching the description of defendant's girlfriend, the witness

who saw a man exit the red car and run from the bank minutes

later, as well as the plastic bag and pellet gun recovered from

the scene. The corroborating evidence of the 2009 robbery was

less extensive, but the State established that a bank located in

the exact location defendant described was robbed "about a year

and a half" before defendant's March 11, 2011 confession by a

man of defendant's build who carried a gun and a plastic grocery

bag and demanded large bills. Nothing more was required.

Missing details, speculation or discrepancies in the evidence

were fact questions going to its weight and sufficiency, which

were properly resolved by the jury. See State v. DiFrisco, 118

16 A-5901-13T4
N.J. 253, 271-72 (1990), cert. denied, 516 U.S. 1129, 116 S. Ct.

949, 133 L. Ed. 2d 873 (1996).

Defendant's argument as to the chilling effect of the

court's ruling on the use of the video portion of his March 11

statement requires only brief comment. A defendant's right to

testify in his own behalf is protected by the constitution.

Rock v. Arkansas, 483 U.S. 44, 51, 107 S. Ct. 2704, 2708, 97 L.

Ed. 2d 37, 46 (1987). But the decision is a strategic one, to

be made with advice of counsel. State v. Cordero, 438 N.J.

Super. 472, 488 (App. Div. 2014), certif. denied, 221 N.J. 287

(2015). "[A] defendant who elects to testify . . . is subject

to the same credibility attacks as any other witness" because

"defendants who testify are obligated to tell the truth like all

other witnesses." State v. Daniels, 182 N.J. 80, 97 (2004).

"Indeed, the right to testify is neither a license to commit

perjury nor a shield against contradiction." Ibid. To that

end, statements and physical evidence which have been suppressed

may be utilized to impeach false statements made by a defendant.

See, e.g., United States v. Havens, 446 U.S. 620, 626-27, 100

S. Ct. 1912, 1916, 64 L. Ed. 2d 559, 565-66 (1980); Harris v.

New York, 401 U.S. 222, 224-26, 91 S. Ct. 643, 645-46, 28 L. Ed.

2d 1, 4-5 (1971).

17 A-5901-13T4
 Having presided over defendant's first trial, in which he

took the stand, the judge was in a unique position to address

the use of the video portion of the March 11 statement to

impeach defendant's credibility. We accordingly view his advice

to defendant about the potential use of the video portion of the

statement to impeach his credibility as no more than fair

warning. The ruling both protected defendant from the jury

viewing him in prison garb, and cautioned him as to the limits

of that ruling. It thus struck a fair balance between competing

interests and did not impinge on defendant's right to testify if

he so chose.

We turn now to defendant's sentence, which we find more

problematic than the issues he raises as to his conviction.

As previously noted, we affirmed the extended-term sentence

of forty years defendant is currently serving following his

conviction of three of the five robberies charged in the single

superseding indictment. See infra at 2. Following defendant's

conviction of the remaining two robberies, the trial judge

sentenced him, after merger, to the top of the range on both the

first- and second-degree convictions and ran them consecutively

to each other and to the forty-year sentence defendant is

currently serving. The judge, however, offered no explanation

for the consecutive sentences other than to note "that the

18 A-5901-13T4
robberies of which this defendant was convicted both in the

first trial and the second trial apply all the Yarbough2

standards. These are clearly separate offenses and he will be

sentenced accordingly."

It is axiomatic that our review of a trial judge's

sentencing determination is deferential. See State v. Fuentes,

217 N.J. 57, 70 (2014). Thus a sentencing court's decision to

impose consecutive sentences will not be disturbed on appeal, so

long as the judge has properly evaluated the Yarbough factors in

light of the record. State v. Cassady, 198 N.J. 165, 182

(2009).

But evaluation of those factors is critical. Here,

defendant was forty-six years old at the time of sentencing and

was already serving a forty-year NERA term on other counts of

the same indictment. Following a six-day trial in which

defendant was convicted of a lesser-included offense with regard

to the 2009 robbery and acquitted of an attendant weapons

charge, the judge imposed a thirty-year consecutive sentence

without articulating his consideration of either the Yarbough

factors or the real-time consequences of the NERA terms. See

2
State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied,
475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

19 A-5901-13T4
State v. Hernandez, 208 N.J. 24, 50 (2011). We would ordinarily

in this circumstance, remand for the judge to articulate his

reasons for the sentence with specific reference to the Yarbough

factors. See State v. Abdullah, 184 N.J. 497, 514-15 (2005).

The trial judge's retirement, however, makes that course

impossible. Accordingly, we vacate the sentence and remand for

a new sentencing hearing.

Defendant's convictions are affirmed and the matter

remanded for a new sentencing hearing. We do not retain

jurisdiction.

20 A-5901-13T4