NOT FOR PUBLICATION WITHOUT THE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-4412-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE TEPANECATLTEPALE,
a/k/a JOSE M. TEPALE,
Defendant-Appellant.
____________________________
Submitted February 6, 2019 – Decided February 19, 2019
Before Judges Reisner and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 16-07-0592.
Joseph E. Krakora, Public Defender, attorney for
appellant (Stefan Van Jura, Deputy Public Defender II,
of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Ali Y. Ozbek, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jose Tepanecatltepale appeals from an April 21, 2017 judgment
of conviction following a jury trial for first-degree attempted murder, N.J.S.A.
2C:5-1(a)(1) and 2C:11-3(a)(1); second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1); third-degree possession of a knife for an unlawful purpose,
N.J.S.A. 2C:39-4(a); and fourth-degree unlawful possession of a knife, N.J.S.A.
2C:39-5(d). We affirm.
The following facts are taken from the record. Beginning in January 2016,
the victim, Fidel Cabrera, rented a room in the first-floor apartment of a
residence located on Center Street in Clifton. Cabrera's room was rented from
Jorge Mesa, who had rented the entire three-bedroom apartment from the owner,
and sublet the two remaining bedrooms to Cabrera and defendant. Cabrera had
not met defendant before the night of the incident because he had a different
work schedule, and defendant had only been living in his room for
approximately three weeks.
On January 10, 2016, at approximately 1:00 a.m., Cabrera entered the
hallway of the apartment. A man opened the door, emerged from the middle
bedroom, and approached him. The man grabbed Cabrera by the shoulder, said
"hello friend" in Spanish, and stabbed him in the stomach. Cabrera pushed the
man back, retreated to his bedroom, and locked the door. Cabrera called 9-1-1
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and said "[a] guy stabbed me, he lives here, he stabbed me." Cabrera was
hospitalized and had emergency surgery to repair a punctured colon and
lacerated liver.
Police responded to the residence and found no signs of forced entry.
They discovered a bloodstained shirt on the floor of the apartment and
surveillance footage from a bar next door, which showed a shirtless man running
at approximately 1:30 a.m.
Detective Michael Panepinto interviewed Cabrera at the hospital. Cabrera
stated he had never met defendant. When Cabrera returned home from the
hospital, he observed defendant moving belongings out of the middle bedroom.
Cabrera called Panepinto and told him he recognized defendant as the individual
who stabbed him. Panepinto assembled a photographic array containing one
photo of defendant and five other individuals. Cabrera identified defendant's
photo from the array and indicated he was sixty-to-seventy percent certain it
depicted the man who stabbed him.
At trial, Cabrera testified the light in the middle bedroom was on and
provided enough illumination for him to see defendant's face during the attack.
Cabrera also identified defendant in court. He stated the only discrepancy was
that defendant's face looked "chubbier" in the photograph than it did in person.
A-4412-16T2
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After defendant was arrested, he gave police a video recorded statement,
which was also played for the jury. In it, defendant stated he worked at a local
delicatessen until 3:00 p.m. and then returned home. He then visited his sister's
home from 5:30 p.m. to 7:30 p.m. and stopped at a local sports bar on the way
home at approximately 8:30 or 9:00 p.m. Defendant stated he consumed
approximately four or five beers and stayed at the bar until 11:00 p.m. He stated
he was not intoxicated and was "stabilized."
He then left the bar for his sister's home, where he stayed until 12:30 a.m.
Defendant stated he went to the Ukrainian Center in Passaic to see his brother
perform. There he drank four more beers and walked home. Defendant stated
he "blacked out" around 1:30 a.m. and woke up at his brother's house, which
was located several blocks from his apartment. Defendant claimed he had a
history of blacking out, which he believed was caused by repeated head trauma.
Defendant stated he woke up in the clothes he had been wearing the night
before. He claimed he learned of the stabbing when he returned home at 10:00
a.m. Defendant stated he had never met Cabrera because defendant worked
often and slept when he returned home.
In addition to the aforementioned evidence, Mesa testified a knife was
missing from the apartment. The knife used in the incident was never recovered.
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Mesa also testified his bedroom door was shut at the time of the incident and he
did not see anything, but heard a noise which sounded like someone running out
of the apartment.
Defendant did not testify at trial. However, his attorney argued that
defendant was mistakenly identified as the attacker because he was asleep at his
brother's home at the time of the stabbing. Defense counsel also argued that
defendant lacked motive to commit the crime and asserted the more likely
explanation was Cabrera had interrupted a burglary by an unknown assailant ,
who had crawled through the middle bedroom window and stabbed him.
Defendant was convicted on all counts and sentenced to an aggregate term
of thirteen years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. This
appeal followed.
Defendant raises the following points on appeal.
POINT I - WHERE IDENTIFICATION WAS THE
CENTRAL ISSUE IN THE CASE, TWO
SIGNIFICANT ERRORS IN THE IDENTIFICATION
JURY INSTRUCTION DENIED DEFENDANT DUE
PROCESS AND A FAIR TRIAL. (Not Raised Below).
....
B. THE COURT INSTRUCTED THE
JURY THAT TWO WITNESSES
IDENTIFIED DEFENDANT AS THE
A-4412-16T2
5
ASSAILANT WHEN, IN FACT, ONLY
ONE DID.
C. THE COURT FAILED TO GUIDE
THE JURY ON HOW PRE-
IDENTIFICATION INSTRUCTIONS
ADMINISTERED TO THE VICTIM
COULD BE TAKEN INTO ACCOUNT
WHEN EVALUATING THE
IDENTIFICATION EVIDENCE.
....
POINT II – PROSECUTORIAL ERROR IN THE
OPENING STATEMENT DENIED DEFENDANT A
FAIR TRIAL. (Not Raised Below).
POINT III – THE TRIAL COURT'S FAILURE TO
SUA SPONTE CHARGE THE DEFENSE OF
INTOXICATION DENIED DEFENDANT DUE
PROCESS AND A FAIR TRIAL. (Not Raised Below).
I.
"[A]ppellate courts are empowered, even in the absence of an objection,
to acknowledge and address trial error if it is 'of such a nature as to have been
clearly capable of producing an unjust result[.]'" State v. Robinson, 200 N.J. 1,
20 (2009) (quoting R. 1:7-5). "Further, our appellate courts retain the inherent
authority to 'notice plain error not brought to the attention of the trial court[,]'
provided it is 'in the interests of justice' to do so." Ibid. (alteration in original)
(quoting R. 2:10-2). "Under that [plain error] standard, defendant has the burden
A-4412-16T2
6
of proving that the error was clear and obvious and that it affected his substantial
rights." State v. Morton, 155 N.J. 383, 421 (1998).
"Correct jury charges are essential to a fair trial and failure to provide a
clear and correct charge may constitute plain error." State v. Holden, 364 N.J.
Super. 504, 514 (App. Div. 2003). Indeed, erroneous instructions on matters or
issues that are material to the jury's decision are presumed to be reversible error.
State v. Warren, 104 N.J. 571, 578-79 (1986). Moreover, if a jury instruction is
particularly "crucial to the jury's deliberations on the guilt of a criminal
defendant," then "'[e]rrors [having a direct impact] upon these sensitive areas of
a criminal trial are poor candidates for rehabilitation' under the plain error
theory." State v. Jordan, 147 N.J. 409, 422-23 (1997) (quoting State v. Simon,
79 N.J. 191, 206 (1979)).
"The trial court must give a clear explanation of the applicable law to
provide the jury with an adequate understanding of the relevant legal principles."
State v. Hackett, 166 N.J. 66, 85 (2001) (citing State v. Burgess, 154 N.J. 181
(1988)). In reviewing any claim of error "[t]he charge must be read as a whole
in determining whether there was any error[,]" State v. Torres, 183 N.J. 554, 564
(2005), and the effect of any error must be considered "in light 'of the overall
A-4412-16T2
7
strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting
State v. Chapland, 187 N.J. 275, 289 (2006)).
A.
Defendant argues the trial judge erroneously attributed defendant's
identification to Panepinto, who was "only involved in producing the
photographic array." Specifically, defendant challenges the following passage
from the jury charge on identification:
The State has presented the testimony of . . .
Cabrera and . . . Panepinto. You will recall that these
witnesses identified the defendant in court as the person
who committed attempted murder, aggravated[]
assault, possession of a weapon for [an] unlawful
purpose and unlawful possession of a weapon.
The State also presented testimony that on a prior
occasion before this trial, these witnesses identified the
defendant as the person who committed these offenses.
According to the witnesses, their identification of
the defendant is based upon the observations and
perceptions that they made of the perpetrator at the time
the offense was being committed.
The aforementioned statement did not constitute reversible error. At the
outset, we note defendant did not object to the instruction. 1 This is because
1
Counsel's failure to object to jury instructions not only "gives rise to a
presumption that he did not view [the charge] as prejudicial to his client's
A-4412-16T2
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Panepinto identified defendant in court as the individual he arrested and charged
with committing the offense. Panepinto explained defendant's arrest was based
on the information he obtained during his investigation, namely, the
observations he made immediately after the incident, at the scene, and the
interviews of Cabrera and defendant. In the context of this case, the instruction
would not have confused the jury and was not capable of creating an unjust
result. Hence, we find no plain error.
Defendant claims the State failed to elicit evidence regarding the
instructions Cabrera was given prior to the photo array identification of
defendant. He argues the judge should have read the jury the model charge for
in-court and out-of-court identifications. He asserts the failure to provide the
instruction "deprived the jury of the information it needed to properly assess the
identification."
Generally, "a model identification charge should be given in every case in
which identification is a legitimate issue," State v. Davis, 363 N.J. Super. 556,
561 (App. Div. 2003), which requires instruction "about the various factors that
may affect the reliability of an identification[.]" State v. Henderson, 208 N.J.
case[,]" State v. McGraw, 129 N.J. 68, 80 (1992), but is also "considered a
waiver to object to the instruction on appeal." State v. Maloney, 216 N.J. 91,
104 (2013).
A-4412-16T2
9
208, 296 (2011). Whether the failure to provide a jury instruction regarding
identification is "plain error depends on the strength and quality of the State's
corroborative evidence rather than on whether defendant's misidentification
argument is convincing." State v. Cotto, 182 N.J. 316, 326 (2005). Thus, the
failure to provide a jury instruction regarding identity is not error when there
"exists substantial corroborating evidence, where the identification o f the
witness is positive, certain and consistent, or where defense counsel is able to
attack the credibility of identification testimony through cross-examination and
closing argument." State v. Salaam, 225 N.J. Super. 66, 71 (App. Div. 1988)
(citations omitted).
Again, we note defendant did not object to the jury instruction.
Notwithstanding, the judge gave a thorough and extensive instruction, which
addressed the State's burden of proving the identity of defendant and the
elements of the offenses charged, the in-court and out-of-court witness
identifications of defendant, and the nature of the photo array identification
process. After describing the latter, the judge stated the following:
In this case, it [is] alleged that the person who
presented the lineup knew the identity of the suspect
and it is also alleged that the police . . . did not
compensate for that fact by conducting the procedure in
which the officer did not see the photos as the witness
looked at them.
A-4412-16T2
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You may consider this factor when you consider
the circumstances under which the identification was
made and when you evaluate the overall reliability of
the identification. You may consider whether the
witness was exposed to opinions, descriptions or
identifications given by other witnesses to photographs
or newspaper accounts or to any other information or
influence that may have affected the independence of
his or her identification.
Such information can affect the independent
nature and reliability of a witness' identification and
inflate the witness' confidence in the identification.
You are also free to consider any other factor based on
the evidence or lack of evidence in the case that you
consider relevant to your determination whether the
identifications were reliable.
....
The ultimate issue of the trustworthiness of an
identification is for you to decide. If after consideration
of all of the evidence you determine that the [S]tate has
not proven beyond a reasonable doubt that [defendant]
was the person who committed these offenses, then you
must find him not guilty.
Considering the jury charge as a whole and in light of the overall strength
of the State's case, as we must, we find no cause to reverse. The jury charge
here was extensive, and we have only recited a portion of it. Moreover, neither
side presented evidence concerning the instructions given to Cabrera prior to
being shown the photo array. Thus, it was not an issue of concern for the jury.
A-4412-16T2
11
Regardless, Cabrera identified defendant as the attacker before he ever saw the
photo array, and he identified him in court. Therefore, the failure to include the
model instruction on the photo array identification was not reversible error.
B.
Defendant claims the court's failure to charge the defense of intoxication
denied him due process and a fair trial. He asserts "[t]he evidence was
undisputed that [he] was so severely intoxicated that he 'blacked out' and had no
memory of the night after about 1:30 a.m." He asserts under these
circumstances, "an instruction on intoxication was clearly indicated by the
record."
"[W]hen the requisite culpability for a crime is that the person act
'purposely' or 'knowingly,' evidence of voluntary intoxication is admissible to
disprove that requisite mental state." State v. Cameron, 104 N.J. 42, 53 (1986).
In order for intoxication to diminish "the capacity to act purposely or knowingly,
the intoxication must be of an extremely high level; it must have caused a
'prostration of faculties' in the defendant." State v. Sette, 259 N.J. Super. 156,
170 (App, Div. 1992) (quoting Cameron, 104 N.J. at 54). "[A] jury issue arises
only if there exists a rational basis for the conclusion that defendant's 'faculties'
A-4412-16T2
12
were so 'prostrated' that he or she was incapable of forming an intent to commit
the crime." State v. Mauricio, 117 N.J. 402, 418-19 (1990).
In Cameron, our Supreme Court addressed the extreme level of
intoxication necessary to satisfy the "prostration of faculties" test. The Court
stated:
[I]t is not the case that every defendant who has
had a few drinks may successfully urge the defense.
The mere intake of even large quantities of alcohol will
not suffice. Moreover, the defense cannot be
established solely by showing that the defendant might
not have committed the offense had he been sober.
What is required is a showing of such a great
prostration of the faculties that the requisite mental
state was totally lacking. That is, to successfully
invoke the defense, an accused must show that he was
so intoxicated that he did not have the intent to commit
an offense. Such a state of affairs will likely exist in
very few cases.
[Cameron, 104 N.J. at 54 (alteration in original)
(citation omitted) (quoting State v. Stasio, 78 N.J. 467,
495 (1979)).]
Futher, the Court noted:
[S]ome of the factors pertinent to the determination of
intoxication sufficient to satisfy the test of "prostration
of faculties" . . . are the following: the quantity of
intoxicant consumed, the period of time involved, the
actor's conduct as perceived by others (what he said,
how he said it, how he appeared, how he acted, how his
coordination or lack thereof manifested itself), any odor
of alcohol or other intoxicating substance, the results of
A-4412-16T2
13
any tests to determine blood-alcohol content, and the
actor's ability to recall significant events.
[Cameron, 104 N.J. at 56.]
The defendant in Cameron had stated she felt "'pretty intoxicated,' 'pretty
bad,' and 'very intoxicated.'" Ibid. The Court in Cameron found a voluntary
intoxication instruction was not warranted because the statements were "no more
than conclusory labels, of little assistance in determining whether any drinking
produced a prostration of faculties." Ibid.
In State v. R.T., 411 N.J. Super. 35 (App. Div. 2009), we reviewed the
factors set forth in Cameron in the context of a sua sponte jury instruction on
voluntary intoxication. 411 N.J. Super. at 50-51. In R.T., the defendant
confessed to police that he drank excessively and potentially molested his
nephew while intoxicated. Id. 40-41. We noted the lack of blood alcohol tests
and other indicia of alcohol consumption, such as an odor, to corroborate his
claim of alcohol consumption. Id. at 50. Moreover, the victim only
corroborated that defendant had a drinking habit. Id. at 51. We concluded the
"evidence would be entirely insufficient to establish the extremely high level of
intoxication required by the [c]ourt to qualify as a defense as well as to create a
jury question on defendant's intoxication." Ibid.
A-4412-16T2
14
Here, defendant's claims regarding his intoxication were based solely on
his own uncorroborated testimony. Defendant told police he did not feel
intoxicated after drinking at a bar between 8:00 and 9:00 p.m., before the
incident. He also stated he did not feel intoxicated at approximately 11:00 p.m.
and instead felt "stabilized." Despite his alcohol consumption, defendant stated
he was "still able to control [him]self" and only felt "a little drowsy." Defendant
stated his blackout was not due to alcohol consumption, but a history of head
trauma. Thus, the record lacked any evidence of intoxication, and contained
evidence to the contrary. For these reasons, the trial judge did not err by failing
to instruct the jury on a voluntary intoxication defense.
II.
Defendant argues the prosecutor's opening statement informed the jury
Panepinto had concluded defendant was the perpetrator of the crime, and this
comment deprived him of a fair trial. Specifically, defendant points to the
following statements by the prosecutor:
In his investigation [Panepinto] was trying to eliminate
suspects and eliminate alternative theories, so he could
come to the right conclusion.
Now, through his review of the scene, the
collection of evidence, and speaking to witnesses, . . .
Panepinto was able to definitively conclude that it was,
A-4412-16T2
15
in fact, the defendant who had stabbed . . . Cabrera in
that first-floor apartment . . . on January 10th, 2016.
Opening statements and summations of counsel are not evidence. State v.
Timmendequas, 161 N.J. 515, 578 (1999). The purpose of opening statements
are to better prepare the jury to understand the evidence, and such statements
are limited to the facts that counsel intends to prove. State v. Wakefield, 190
N.J. 397, 442 (2007).
Prosecutorial misconduct is not a basis for reversal unless the conduct
"was so egregious that it deprived [the] defendant of a fair trial." State v.
DiFrisco, 137 N.J. 434, 474 (1994) (quoting State v. Pennington, 119 N.J. 547,
565 (1990)). That is, the prosecutor's conduct must have been "'clearly and
unmistakably improper,' and must have substantially prejudiced defendant's
fundamental right to have a jury fairly evaluate the merits of his defense."
Wakefield, 190 N.J. at 438 (quoting State v. Papasavvas (I), 163 N.J. 565, 625
(2000)). Considerable leeway is afforded to prosecutors in presenting their
arguments at trial "as long as their comments are reasonably related to the scope
of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). However, a
prosecutor must not "express his or her personal belief or opinion as to the truth
or falsity of any testimony or evidence or the guilt of the defendant." State v.
A-4412-16T2
16
Marshall, 123 N.J. 1, 154 (1991) (quoting ABA Standards For Criminal Justice,
§3-5.8(b) (2d ed. 1980)).
When, as here, a defendant fails to object to the prosecutor's comments at
trial, the allegedly "improper remarks . . . will not be deemed prejudicial."
Timmendequas, 161 N.J. at 576. Notwithstanding defendant's failure to object,
he relies on State v. Rivera, 437 N.J. Super. 434 (App. Div. 2014), a case that is
clearly distinguishable. There, the prosecutor's opening included a PowerPoint
presentation, which declared "Defendant: GUILTY OF: ATTEMPTED
MURDER." Id. at 447 (emphasis omitted).
Here, during his opening statement, the prosecutor had already informed
the jury that Cabrera identified defendant as the individual who stabbed him,
before addressing the police investigation. Based on Cabrera's identification,
the prosecutor stated Panepinto's investigation led him to conclude defendant
had committed the stabbing and left the jury to decide the result based on the
evidence. Taken in context, the prosecutor's remarks on the investigation
explained what the State intended to prove and the evidence it would present at
trial, and did not impart an opinion on the veracity of the evidence.
The trial judge's instruction to the jury prior to the start of trial reinforced
these principles. In pertinent part, the judge stated:
A-4412-16T2
17
The first order of business will be the
prosecutor's opening statement. In the opening
statement, the prosecutor will present the State's
contentions and will outline what he expects to prove.
Following that, defense counsel if he chooses will make
an opening statement.
What is said in opening statements is not
evidence. The evidence will come from the witnesses
[who] testify and from whatever documents [or]
tangible items that are received into evidence.
The judge repeated a similar instruction before the jury deliberated.
Additionally, the jury received detailed instructions regarding the elements of
the crimes charged, including the mens rea required to prove them. Thus, the
jury was clearly informed as to the distinction between evidence and argument.
Finally, considering the substantial evidence supporting defendant's guilt the
prosecutor's remarks did not constitute reversible error.
Affirmed.
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