NOT FOR PUBLICATION WITHOUT THE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-4079-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PEDRO A. GARCIA,
Defendant-Appellant.
_____________________________
Submitted December 20, 2017 – Decided July 11, 2018
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
11-11-1892.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michele A. Adubato, Designated Counsel, on
the brief).
Christopher S. Porrino, Attorney General, attorney for
respondent (Arielle E. Katz, Deputy Attorney General,
of counsel and on the brief).
PER CURIAM
Defendant, Pedro A. Garcia, confessed to police that he and
a co-defendant, Wilfredo Sanchez, stabbed to death, decapitated,
dismembered, and dispersed the body parts of the gay man with whom
they lived. For those offenses, a jury convicted defendant of
murder, desecrating human remains, and other crimes, and a judge
sentenced him to an aggregate sixty-year prison term with forty-
two and one-half years parole ineligibility.1
Defendant appeals. He argues he did not voluntarily,
knowingly, and intelligently waive his Miranda2 rights before
confessing to police, and thus the trial court erred by denying
his suppression motion. He also argues that separately or
cumulatively, the improper and prejudicial testimony of three
witnesses, the admission of gruesome photographs, the prosecutor's
misconduct, and the trial court's refusal to charge the jury on
manslaughter, deprived him of a fair trial. Last, he argues his
sentence is excessive.
We reject defendant's arguments. The motion record amply
supports the trial court's finding that defendant voluntarily,
knowingly, and intelligently waived his Miranda rights and
confessed his crimes. With the exception of his request for a
jury instruction on manslaughter, defendant preserved for
1
In a separate trial, a jury convicted co-defendant Sanchez on
all counts and a judge sentenced him to an aggregate term of life
imprisonment plus fifteen years. His conviction was affirmed.
State v. Sanchez, No. A-5951-13 (App. Div. Aug. 19, 2016), certif.
denied, 230 N.J. 602 (2017).
2
Miranda v. Arizona, 384 U.S. 436, (1966).
2 A-4079-15T4
appellate review none of the alleged trial errors he now complains
of, and none were clearly capable of producing an unjust result.
And defendant's sentence is neither illegal nor conscience
shocking. For these reasons, we affirm defendant's convictions
and sentence.
I.
A.
A Bergen County Grand Jury charged co-defendants in a multi-
count indictment with first-degree murder, N.J.S.A. 2C:2-6 and
N.J.S.A. 2C:11-3(a)(1) & (2); second-degree desecration of human
remains, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:22-1(a); second-degree
disturbing or concealing human remains, N.J.S.A. 2C:2-6 and 2C:22-
1(a); two counts of third-degree possession of a knife for an
unlawful purpose, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:39-4(d); two
counts of fourth-degree unlawful possession of a knife, N.J.S.A.
2C:39-5(d); and two counts of third-degree hindering apprehension,
N.J.S.A. 2C:29-3b(1) and N.J.S.A. 2C:29-3(b)(4). (Da1-4).
Following the indictment, defendant filed a motion to suppress
statements he made to police. The court denied the motion. At
trial, the jury found defendant guilty on all counts.
The trial court sentenced defendant as follows: For murder,
to a fifty-year prison term subject to the No Early Release Act,
N.J.S.A. 2C:43-7.2; for desecrating the victim's body, to a ten-
3 A-4079-15T4
year prison term consecutive to the murder count; and for
disturbing or concealing human remains, to a ten-year prison term
concurrent to the other counts. The court merged the weapons
offenses. On the two hindering apprehension counts, the court
sentenced defendant on each to a five-year prison term concurrent
to all other counts. Defendant appeals.
B.
The State presented the following proofs at trial. The
victim, a single gay man, lived in a three-room studio apartment,
one of three in a building on Palisade Avenue in Cliffside Park.
During December 2010 and January 2011, defendant also resided in
the apartment. In the latter part of December 2010, while the
victim spent time in El Salvador, defendant invited co-defendant,
Wilfredo Sanchez, to move into the apartment, which Sanchez did.
Defendant and Sanchez were still living there when the victim
returned near the month's end.
According to the victim's sister, the victim and defendant
enjoyed a sexual relationship, but defendant would often deny it.
The sister once observed defendant become angry because the victim
had told defendant's ex-wife defendant was gay. When asked by the
prosecutor what the victim said about the relationship with
defendant, the sister testified — without objection from defendant
4 A-4079-15T4
— "when my brother would give him money, everything was fine. But
when my brother wouldn't give him anything he would abuse."
Similarly, another tenant in the three-unit building
testified the victim said he loved defendant a lot, but defendant
did not love him. The other tenant once found the victim crying,
and the victim said defendant had hit him. According to the other
tenant, "[the victim] said that [defendant] had told him that he
was going to kill him. [The victim] took it . . . as if it were
a joke." A third tenant testified the victim always said he was
deeply in love with defendant, but defendant would become
embarrassed when the victim referred to defendant as a boyfriend.
The third tenant once observed defendant slap the victim.
During the second Sunday, Monday, and Tuesday of January
2011, police investigated the victim's disappearance and homicide.
They became involved when the victim's sister reported him missing.
When he did not answer her daily call on Sunday, and she later
learned he missed work — which he had never done — she went to his
apartment where she confronted Sanchez, his brother, and a friend.
Sanchez phoned defendant, who came to the apartment a short time
later. Disbelieving defendant when he denied knowing where the
victim was, the victim's sister said she had installed cameras in
the apartment during her brother's trip to El Salvador. When she
made this statement, she observed defendant become nervous.
5 A-4079-15T4
The victim's brother arrived and called police. Patrol
officers arrived shortly after 6:30 p.m., but they did not speak
Spanish and the apartment's occupants did, so defendant and the
victim's siblings went to Cliffside Park Police Station where they
were interviewed by an officer who spoke Spanish. His name was
Jesus Garcia. The victim's sister told Officer Garcia she was
very concerned about her brother and the last person to see him
was defendant. She insisted defendant knew what happened to her
brother. Defendant denied this.
Defendant told Officer Garcia he had come home from work the
previous evening, Saturday, and was very tired. There was a party
going on in the apartment, but he went to sleep. Later, the victim
left with unknown persons. According to defendant, the victim
frequented gay clubs in New York City and that is probably where
he had gone. Officer Garcia helped the victim's siblings file a
missing person report.
While Officer Garcia was assisting the victim's siblings, the
victim's upstairs neighbor telephoned and said she had seen what
appeared to be blood stains on the walls, in the kitchen, and in
the bathroom of the victim's apartment. Officer Garcia was
dispatched to the apartment, which was only a minute or two from
the police department.
6 A-4079-15T4
Sanchez, his brother, and his friend were still there.
Sanchez told Officer Garcia he and his brother had attended the
party the previous night but left at 12:30 a.m. The officer
observed blood in three places: the wall beneath a mirror in the
living room, on a kitchen cabinet, and in the bathroom.
The victim's sister and defendant returned at approximately
9:45 p.m. The officer overheard the victim's sister and defendant
arguing. She insisted a set of bed sheets was missing. He said
they had been thrown out due to a bug problem. She insisted
defendant permit her to look through the victim's knife drawer and
that the police also look through it. According to the officer,
"[t]here was no answer from [defendant] at that time about the
knives." Defendant did not object to this testimony.
Officer Garcia asked defendant if he knew where the blood
came from. Defendant said he was asleep the night before and did
not know who was at the party, but around ten o'clock somebody
knocked on the apartment door. When the victim answered the door,
the person punched him in the face. The victim shut the door and
continued to party. Defendant could not identify the assailant.
A short time later, Cliffside Park Detective Sergeant John
MacKay arrived. Defendant and the victim's sister continued to
argue about the bed sheets. Officer Garcia testified the sister
continued to insist she be allowed to look in the knife drawer.
7 A-4079-15T4
Officer Garcia also heard defendant tell the victim's sister,
"[y]our brother had too much trust in Wilfredo." According to
Officer Garcia, defendant spoke in the past tense then corrected
himself and spoke in the present tense.
Officer Garcia and Detective MacKay asked everyone except
defendant to leave the apartment. Detective MacKay interviewed
defendant and Officer Garcia translated. Defendant again denied
he was gay and then repeated to Detective MacKay what he had told
Officer Garcia about the party the previous night and the victim
leaving at approximately 2:00 a.m.
The next day, Monday, the investigation evolved into a
homicide investigation. That morning, detectives observed
evidence of blood in the parking lot behind the victim's apartment
building. They summoned a K-9 officer with a cadaver dog named
Harley. Harley gave a "positive indication" by licking and
scratching at the blood spot. The dog was trained to "indicate"
on human remains only. During the day, the K-9 officer and Harley
conducted a "spiral search" from the parking lot. Harley gave
positive indications at three locations not far from the victim's
apartment. The dog first located a large black garbage bag in a
"Christmas wrapped box" behind a church and three more black
garbage bags at a construction site. Harley exhibited behavior
at a third site that indicated he smelled human remains, but he
8 A-4079-15T4
did not give a positive indication, that is, lick or scratch any
container.
The garbage bag found at the church and two of the garbage
bags found at the construction site contained human remains. One
contained a severed head. Another contained a torso. The third
contained a right lower human leg with a blue sock on it. The
bags also contained two knives, a knife sharpener, assorted
clothing, latex gloves, cigarette butts, a shower curtain, a bath
rug, toilet bowl cleaner, a brush, a holder, air freshener, and
other items. Many of the items were bloodstained. The victim's
sister and brother identified the severed head found inside one
of the garbage bags as that of the victim. The victim's arms,
left leg, and penis were not recovered. During the trial, the
prosecution introduced without objection various photographs of
the garbage bags' contents.
Following the gruesome discoveries, homicide detectives
searched the victim's apartment and an apartment where Sanchez had
gone to live; the victim's after obtaining a warrant, Sanchez's
after obtaining his consent. The detectives seized from the
victim's apartment, among other evidence they circumstantially
linked to items in the garbage bags, a broken piece of a dinner
plate. The plate's pattern matched precisely the pattern on dinner
plates, one whole and one broken, contained in the garbage bags.
9 A-4079-15T4
Similarly, detectives seized from Sanchez's apartment
clothing detectives circumstantially matched to clothing removed
from the garbage bags. For example, they recovered socks with the
same American flag logo as those found in the garbage bags. They
also found shirts with sleeves cut off and blue jeans speckled
with paint. A shirt with sleeves cut off and a paint-speckled
pair of pants were also found in one of the garbage bags.
Detectives also obtained video surveillance footage from
cameras near the victim's apartment, near the church, and near the
construction site. Surveillance footage captured groups of people
crossing a street from the vicinity of the victim's apartment
between 1:00 and 1:15 on Sunday morning. According to a detective,
they were the people who had attended the party.
Between 4:00 and 5:00 a.m. the same morning, video
surveillance captured a person detectives believed to be Sanchez.
The man had his hands up around his shoulders as he stepped into
the parking-lot area and walked toward the back of the church
where Harley found the first bag. Another camera captured the man
returning from the area of the church, his hands at his side. The
person turned into the driveway of the victim's apartment.
Later Sunday morning, at approximately 8:03 a.m., a video
camera on a commercial building across the street from the victim's
apartment captured defendant carrying two bags. Defendant placed
10 A-4079-15T4
one on the ground, left the view of the camera, returned
approximately eight minutes later, picked up the second bag, and
walked past the camera out of its view.
Detectives also obtained video surveillance from the vicinity
where Harley had engaged in behavior indicating he had detected a
scent of human remains. The surveillance film captured a male,
who could not be identified, entering and leaving the area.
Detectives learned that residential garbage was collected from
this site by public-works trucks on Monday morning, before Harley
discovered the victim's remains.
The police picked up Sanchez and arrested him. On Tuesday,
the day after the body parts were found, detectives located
defendant and transported him to the Bergen County Prosecutor's
Office. After providing defendant with food and a bottle of water,
and after defendant used a bathroom, detectives informed him of
his Miranda rights, which he waived. The detectives videotaped
an interview with him. Detective James Brazofsky began the
interview at approximately 3:00 p.m. Defendant first repeated the
version of events he had given police the previous Sunday evening
concerning the victim leaving late Saturday night or early Sunday
morning. Defendant then said that on Sunday morning he went to
work at a Greek restaurant in Glen Rock where he worked as a cook.
Detective Brazofsky testified:
11 A-4079-15T4
I right off the bat knew he was not being
truthful with us because I had been to the
Greek [restaurant] the day before and spoken
to his boss who informed me that he was fired
two weeks earlier so I knew he was not being
truthful when he told me he had gone to work
Sunday. He did receive his pay from the week
or the weeks that he worked prior to being
fired but he was fired by that owner two weeks
before this homicide took place.
Defendant next told the police, contrary to what he had
previously told them, that he and co-defendant cleaned the
apartment in the middle of the night and made multiple trips to
the street to deposit garbage. When confronted with the
surveillance footage, defendant asked whether there were cameras
in the victim's apartment. Eventually, after being confronted
with multiple inconsistencies, defendant said he would tell the
truth.
Defendant confessed. He said, "We did it. It wasn't just
me. It was [m]e and [Sanchez]. We did it. We killed him."
Defendant admitted that after others left the party, he, Sanchez,
and the victim were lying on one bed in the apartment. The victim
touched Sanchez and began undoing Sanchez's belt. Sanchez woke
up, got angry, shoved the victim to the floor, and punched him at
least once. During the scuffle, either Sanchez or the victim
broke a dinner plate.
12 A-4079-15T4
Sanchez yelled he was not defendant, and the victim should
not touch him. Defendant attempted to calm Sanchez down, but
Sanchez said, "we have to kill him. We have to finish him." In
response, defendant went to the kitchen, grabbed a knife, returned,
and stabbed the victim once in the neck, inflicting the wound the
medical examiner said was the cause of death.
Defendant explained how he and Sanchez stabbed the victim and
put him in the bathtub. They ignored the victim's pleas for his
life. They disemboweled the victim and watched him die. After
the victim died, defendant and Sanchez placed his body on a blanket
and carried the body to the apartment's parking lot. They intended
to dispose of the body, but it was too heavy to carry further, so
they took it back to the apartment and placed it in the bathtub,
where they dismembered it.
Defendant admitted they put on gloves to protect their hands.
They attempted to hide evidence, including the gloves, pillows,
curtains, and a bathroom rug, by placing it in the same bags as
the body parts. When they finished putting the victim's body
parts and the other items into garbage bags, they used a Clorox
bottle to clean the bathroom.
Defendant admitted Sanchez disposed of one bag at a nearby
church, and he and Sanchez disposed of other bags at the
construction site. Defendant also disposed of a garbage bag where
13 A-4079-15T4
Harley had detected the odor of blood or remains but found nothing.
Defendant did not dispose of the shoes he wore. He was wearing
them at the time of the interview. Detectives observed blood on
them. Forensic experts matched the blood to that of the victim.
The State produced forensic evidence that corroborated
defendant's confession. DNA found on cigarette butts in the black
garbage bags matched defendant's DNA. Forensic experts matched
DNA from a sock found in a garbage bag to Sanchez's DNA. In
addition, as previously explained, items in the black garbage bags
matched items seized in the search of the victim's and Sanchez's
apartments.
The victim's upstairs tenant testified that after most people
left the party at the victim's apartment on Saturday night or
early Sunday morning, the victim, defendant, and Sanchez argued.
The tenant heard the victim scream repeatedly at defendant to
leave the apartment. The tenant heard swearing and cursing. The
music coming from the victim's apartment became louder.
According to the tenant, the victim's voice suddenly became
muffled and there was much banging coming from the apartment, as
though furniture was being moved around. The tenant heard
mumbling, then heard the shower being turned on, after which the
tenant no longer heard the victim's voice. The argument between
14 A-4079-15T4
defendant and the victim, which had lasted approximately one hour,
ceased. The tenant never saw the victim again.
Defendant presented the testimony of one witness, a friend
he had known since childhood. The friend testified defendant had
never been gay. In fact, he was once married and had a child.
The friend visited defendant at the victim's apartment twice and
he and defendant got drunk. During the visits, he heard the victim
claim to be defendant's boyfriend. The statement made defendant
angry. The friend explained that defendant had been homeless and
at times lived with the victim. According to the childhood friend,
defendant had come to his home in the morning of the day he was
arrested. The friend could not recall the exact time. He thought
it was approximately 9:00 a.m. Defendant was very drunk.
II.
Defendant appeals and raises the following arguments:
POINT I
THE COURT'S FAILURE TO CHARGE THE LESSER-
INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER
AND PASSION/PROVOCATION MANSLAUGHTER AT
DEFENDANT'S REQUEST WAS REVERSIBLE ERROR.
POINT II
THE ADMISSION OF HEARSAY STATEMENTS OF THE
VICTIM RECOUNTING ABUSE BY DEFENDANT WAS AN
ABUSE OF DISCRETION AND DEPRIVED DEFENDANT OF
A FAIR TRIAL. (Not raised below).
15 A-4079-15T4
POINT III
IMPROPER REFERENCES TO DEFENDANT'S PRE-ARREST
SILENCE VIOLATED MR. GARCIA'S RIGHT AGAINST
SELF-INCRIMINATION. (Not raised below).
POINT IV
THE ADMISSION OF GRUESOME AND INFLAMMATORY
PHOTOGRAPHS DEPRIVED DEFENDANT OF A FAIR
TRIAL. (Not raised below).
POINT V
THE OVERZEALOUSNESS OF THE PROSECUTOR FROM HIS
OPENING STATEMENT TO HIS SUMMATION DENIED
DEFENDANT A FAIR TRIAL. (Not raised below).
POINT VI
THE DEFENDANT'S STATEMENT TO POLICE SHOULD NOT
HAVE BEEN ADMITTED INTO EVIDENCE BECAUSE IT
WAS NOT KNOWING AND VOLUNTARY. (Not raised
below).
POINT VII
THE TESTIMONY OF DET. BRAZOFSKY EXPRESSING AN
OPINION THAT THE DEFENDANT WAS LYING WAS
IMPERMISSIBLE OPINION TESTIMONY WHICH
REQUIRES REVERSAL OF DEFENDANT'S CONVICTION.
(Not raised below).
POINT VIII
THE AGGREGATE SENTENCE IMPOSED UPON THE
DEFENDANT OF SIXTY YEARS WITH FORTY TWO AND
ONE HALF YEARS OF PAROLE INELIGIBILITY WAS
EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED.
(Not raised below).
POINT IX
THE AGGREGATE OF ERRORS DENIED DEFENDANT A
FAIR TRIAL. (Not raised below).
16 A-4079-15T4
Defendant raises five of his first six arguments for the
first time on appeal. As the Supreme Court has explained,
"[a]ppellate review is not limitless." State v. Robinson, 200
N.J. 1, 19 (2009). Rather, "the points of divergence developed
in proceedings before a trial court define the metes and bounds
of appellate review." Ibid. For that reason, the Supreme Court
has "insisted that, in opposing the admission of evidence, a
litigant must 'make known his position to the end that the trial
court may consciously rule upon it.'" Ibid. (quoting State v.
Abbott, 36 N.J. 63, 76 (1961)).
Indisputably, "our Rules envision the making of
contemporaneous objections as the principal and almost exclusive
means of preserving an issue for appeal." Id. at 20 (citing R.
1:7-2). There are exceptions. For example, Rule 2:10-2 empowers
an "appellate court . . . , in the interests of justice, [to]
notice plain error not brought to the attention of the trial or
appellate court." Under the plain-error standard, "an appellate
court can reverse only if it finds that the error was 'clearly
capable of producing an unjust result.'" State v. Pressley, 232
N.J. 587, 593 (2018) (quoting R. 2:10-2; Stair v. Cole, 229 .S.
430, 458 (2017)). The plain error standard, however, is "not
intended to supplant the obvious need to create a complete record
and to preserve issues for appeal. To permit otherwise would
17 A-4079-15T4
allow the . . . standard . . . to render as mere surplusage the
overarching requirement that matters be explored first and fully
before a trial court." Robinson, 200 N.J. at 20.
With these principles in mind, we turn to defendant's
arguments.
III.
We first address defendant's argument in Point VI that his
confession should have been suppressed because he did not
voluntarily, knowingly, and intelligently waive his Miranda3
rights before confessing to police during his custodial
interrogation. Defendant does not dispute that the detectives,
who spoke fluent Spanish, read him his Miranda rights, and he
signed a form waiving those rights. Indeed, he conceded at the
suppression hearing the detectives properly informed him of his
rights. Rather, defendant asserts in conclusory fashion he "did
not fully understand everything." As evidence of his alleged lack
of understanding, he points to his writing "Pedro" instead of
initialing the waiver of rights form. He also argues for the
first time on appeal that though authorities had not charged him
with any crimes before he confessed, his statement was not
3
Miranda v. Arizona, 384 U.S. 436 (1966).
18 A-4079-15T4
knowingly made because he was not informed that he would be charged
with murder. Neither argument has merit.
The State called three witnesses at the suppression hearing.
Defendant called none. The State presented the testimony of
Cliffside Park Detective Sergeant MacKay and Special Police
Officer Jesus Garcia. Neither testified about defendant's
confession to Bergen County Prosecutor's detectives. Both
testified about statements defendant made on Sunday when the case
was one involving a missing person.
Detective Brazofsky, one of the Bergen County Prosecutor's
detectives to whom defendant confessed, testified about the
circumstances of defendant's confession. The State also
introduced a DVD of the interview and a transcript – in English —
of the recording.
Detective Brazofsky became involved in the investigation
after the victim's body parts were discovered. During the course
of the investigation, co-defendant was interviewed and implicated
defendant as one of the killers. On Tuesday, the day after the
victim's body parts were found, detectives picked up defendant at
approximately 1:40 p.m. and brought him to the Bergen County
Prosecutor's Office. Defendant was escorted to a video-equipped
interview room and given food and a bottle of water. The video
equipment was activated. Defendant used the bathroom before the
19 A-4079-15T4
interview began. Detective Brazofsky, along with Detective
Michael Guzman, were assigned to conduct the interview with
defendant because defendant and both detectives spoke Spanish.
The interview began at approximately 3:05 p.m. Detective
Brazofsky utilized the Spanish language version of the Bergen
County Prosecutor's Office Miranda rights form. After filling out
the date and time on the form, Detective Brazofsky explained to
defendant that he had certain rights, which the detective was
required to read before interviewing him. He then asked defendant
if he could read Spanish and defendant replied "yes." Detective
Brazofsky then read the entire introduction followed by each of
the Miranda warnings.
After the detective read each warning, defendant verbally
answered that he understood. Detective Brazofsky then gave the
form to defendant, asked him to read it, and to print "yes" if he
understood each right. The detective explained that if there was
anything defendant did not understand, the detective would explain
it further. According to the detective, defendant read the form
and wrote "sí", Spanish for "yes," and his name, "Pedro," after
each right.
Detective Brazofsky next read to defendant the "waiver"
portion of the form. Defendant said he understood. The detective
asked if defendant was still willing to speak to them, and
20 A-4079-15T4
defendant replied that he was ready. Defendant signed the form,
although he signed it on the witness line.
Defendant then gave a lengthy statement, which we have
previously summarized. The interview, which was approximately
three hours long, ended around 6:00 p.m. Defendant took several
cigarette breaks during the course of the interview. Following
the interview, the detective charged defendant with murder.
According to Detective Brazofsky, defendant did not appear
to be under the influence of alcohol or drugs when he gave the
statement. Defendant did appear to be hungry, which is why the
detective gave him something to eat before the interview began.
As defendant was reviewing the Miranda form, he asked Detective
Guzman if he should read the form aloud. Detective Guzman
responded defendant could do whatever he liked or however he wished
to proceed. Defendant did not read the form aloud.
Following the hearing on defendant's motion to suppress his
confession, the trial judge issued a written opinion. Referring
to the testimony the State adduced at the hearing, the DVD of the
interview, the transcripts of the interview, and the exhibits
admitted during the hearing, the court found defendant
voluntarily, knowingly, and intelligently waived his Miranda
rights and confessed. The court explained:
21 A-4079-15T4
Here, the defense argues that the
defendant could not have made a knowing,
intelligent, and voluntary waiver of his
Miranda rights because he did not know how to
read Spanish and in turn, could not actually
comprehend the meaning behind each Miranda
right. However, looking at the totality of
the circumstances, it is evident that the
defendant did in fact make a knowing,
intelligent, and voluntary waiver of his
Miranda rights. It was clear from the
investigation leading up to the interview that
the defendant's primary language was Spanish.
At the beginning of the interview with the
defendant, the Spanish-speaking detectives
asked the defendant on two separate occasions
whether he could read Spanish to ensure the
defendant's understanding of Spanish.
Detective Brazofsky asked the defendant in
Spanish, "Okay, you read, do you read, uh, in
Spanish?" and received an answer of "yes" from
the defendant. A very short time later,
Detective Guzman asked the defendant in
Spanish, "Do you know how to read Spanish?"
in which the defendant responded with "yes."
After this inquiry by the detectives, the
defendant was explicitly advised of each and
every Miranda right that was listed on the
Spanish Miranda form before any formal
questioning. Detective Guzman read the
Miranda rights form out loud to the defendant
and then allowed the defendant to read the
form himself. Once the defendant admitted
that he understood each of the rights, he
answered "sí" and signed his name next to each
right. Defendant read the form and asked the
detectives if he should write his full name
(Pedro Angel Garcia) on the form.
Moreover, there is additional evidence
to show that there was no use of deception or
police coercion with the defendant. Before
the interview started, the detectives informed
the defendant that they wanted to discuss the
22 A-4079-15T4
disappearance of the victim and the defendant
was also provided with a sufficient amount of
food and drink. During questioning, the
detectives granted the defendant cigarette
breaks when requested and kept a passive, non-
aggressive tone with the defendant. It
appears that the defendant stayed relatively
calm answering the questions of the detectives
and only became offended when he was asked
whether or not he was gay and had a romantic
relationship with [the victim]. Furthermore,
the defendant was not agitated and
meticulously ate his pizza slices while
cleaning his mouth and table of crumbs.
[citations omitted].
Our review of the factual findings of the trial court is
deferential. State v. Scriven, 226 N.J. 20, 32 (2016). That is
particularly so as "to those findings of the trial judge which are
substantially influenced by his opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing
court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).
If our review satisfies us the trial court's findings could
reasonably have been reached on sufficient, credible evidence
present in the record, our task is complete and we should not
disturb the result. Id. at 162. Our review of the trial court's
legal conclusions is plenary. State v. Rockford, 213 N.J. 424,
440 (2013).
Defendant's argument that he "did not fully understand
everything," as evidenced by his writing his name rather than his
23 A-4079-15T4
initials on the Miranda form, overlooks both the contrary testimony
the State developed, which is overwhelming, and the trial court's
factual findings, which are fully supported by sufficient,
credible evidence. Such evidence included defendant's
responsiveness to the detectives' questions, defendant's
acknowledgement that he could read the Miranda form, and his
execution of the Miranda waiver form. Defendant's argument is
meritless.
Defendant's other argument – that he did not knowingly waive
his Miranda rights because detectives did not inform him he would
be arrested for murder – is also meritless. In State v. A.G.D.,
the Supreme Court held a defendant's Miranda waiver was invalid
because the police did not inform him before beginning his
interrogation that they had an outstanding criminal complaint and
warrant for his arrest. 178 N.J. 56, 68 (2003). In State v.
Nyhammer, however, the Court explained that its holding in A.G.D.
was "not to be construed as altering existing case law . . . other
than imposing the basic requirement to inform an interrogatee that
a criminal complaint or arrest warrant has been filed or issued."
Nyhammer, 197 N.J. 383, 405 (2009) (alteration in original)
(quoting A.G.D., 178 N.J. at 68-69). Thus, even if defendant had
raised the issue before the trial court, it would have been to no
avail. Moreover, under the totality of the circumstances, it can
24 A-4079-15T4
hardly be said that not informing defendant he was a suspect in
the murder case or would be charged with murder would have rendered
invalid his otherwise voluntary, knowing, and intelligent Miranda
waiver.
IV.
We have considered defendant's arguments in Points II through
V and VII in light of the record and applicable legal principles
and concluded they are without sufficient merit to warrant extended
discussion. R. 2:11-(e)(2). We add only these brief comments.
Even if, as defendant contends in Point II, the trial court abused
its discretion by admitting the two hearsay statements given by
the victim's sister and a neighbor concerning defendant's previous
abuse of the victim, the fleeting references did not have the
capacity to produce an unjust result. This is particularly so in
light of another neighboring apartment owner's testimony that she
witnessed defendant physically abuse the victim and in view of the
overwhelming quantitative and qualitative evidence of defendant's
guilt. Indeed, as defendant concedes in his brief "[t]his was a
particularly strong case for the State."
Defendant's argument in Point III concerning his pre-arrest
silence — on Sunday night, in the victim's apartment, in the face
of the sister's insistence to look through the knife drawer — is
based on a misinterpretation of the law. In New Jersey, a
25 A-4079-15T4
prosecutor may not "use at trial a defendant's silence when that
silence arises 'at or near' the time of arrest, during official
interrogation, or while in police custody." State v. Muhammad,
182 N.J. 551, 569 (2005) (citing State v. Deatore, 70 N.J. 100,
108-09 (1976)). Here, defendant was silent not at or near the
time of his arrest, nor while in police custody, but rather two
days before his arrest, in the apartment where he lived, while the
police were in the preliminary stages of a missing person
investigation. And the silence did not occur in the face of police
interrogation, but rather during an argument with the missing
person's sister.
Contrary to defendant's argument in Point IV, the trial court
did not abuse its discretion by admitting the photographs of
defendant's crime, State v. Brown, 170 N.J. 138, 147 (2000),
particularly in the absence of an objection. Moreover, we fail
to discern how the admission of photographic evidence was clearly
capable of producing an unjust trial result in view of the graphic
testimony of the medical examiner and law enforcement officers who
examined the victim's dismembered body parts — all of which was
necessary for the State to prove the elements of the crimes with
which defendant was charged.
Nor was it error for Detective Brazofsky to testify how he
knew defendant was lying during the interrogation, as defendant
26 A-4079-15T4
argues in Point VII. The detective was doing nothing more than
explaining how defendant's initial statements were contrary to
facts developed during the investigation. In some instances, the
contrast was blatant. In any event, the testimony was harmless.
The State presented overwhelming, independent evidence that
defendant lied to police, not only when he initially denied
culpability during the custodial interrogation, but also two days
earlier when he told police that during the Saturday night party
the victim had been punched and later left the apartment with
others, probably to go to a gay bar in New York.
Last, defendant's claims in Point V of prosecutorial
misconduct are unavailing. Defendant takes exception to the
prosecutor presenting certain evidence: how the victim and his
siblings illegally entered the United States; defendant's pre-
arrest silence; gruesome photographs; and hearsay testimony.
Defendant also claims the prosecutor made an inflammatory and
unduly prejudicial closing argument. We have discussed most of
the claims concerning testimonial evidence. As to the prosecutor's
summation, the absence of a timely defense objection signifies
that the remarks were not prejudicial. See State v. Ramseur, 106
N.J. 123, 323 (1987). Considered in the context of the tenor of
the trial and the State's abundant evidence, the prosecutor's
27 A-4079-15T4
remarks did not constitute misconduct let alone reversible error.
State v. Timmendequas, 161 N.J. 515, 575 (1999).
V.
In Point I, defendant argues the trial court erred when it
denied defendant's request to instruct the jury on the lesser-
included offenses of aggravated manslaughter and
passion/provocation manslaughter. We disagree.
An offense is a lesser-included offense when:
(1) It is established by proof of the
same or less than all the facts required to
establish the commission of the offense
charged; or
(2) It consists of an attempt or
conspiracy to commit the offense charged or
to commit an offense otherwise included
therein; or
(3) It differs from the offense charged
only in the respect that a less serious injury
or risk of injury to the same person, property
or public interest or a lesser kind of
culpability suffices to establish its
commission.
[N.J.S.A. 2C:1-8(d).]
A trial court "shall not charge the jury with respect to an
included offense unless there is a rational basis for a verdict
convicting the defendant of the included offense." N.J.S.A. 2C:1-
8(e).
28 A-4079-15T4
In view of these statutory sections, when an appellate court
reviews a trial court's denial of a defendant's request for a
charge on a lesser-included offense, the appellate court must
determine "whether 'the evidence presents a rational basis on
which the jury could [1] acquit the defendant of the greater charge
and [2] convict the defendant of the lesser.'" State v. Carrero,
229 N.J. 118, 128 (2017) (quoting State v. Brent, 137 N.J. 107,
117 (1994)). "If such a rational basis exists, a trial court's
failure to give the requested instruction is reversible error."
Ibid. (citing Brent, 137 N.J. at 118).
An actor commits aggravated manslaughter when "[t]he actor
recklessly causes death under circumstances manifesting extreme
indifference to human life." N.J.S.A. 2C:11-4(a)(1). An actor
commits passion/provocation manslaughter when the actor commits
"[a] homicide which would otherwise be murder . . . in the heat
of passion resulting from a reasonable provocation." N.J.S.A.
2C:11-4(b)(2). Aggravated manslaughter is a lesser-included
offense of murder, State v. Galicia, 210 N.J. 364, 400 (2012)
(citation omitted), as is passion/provocation manslaughter, State
v. Robinson, 136 N.J. 476, 482 (1994) (citation omitted). Thus,
the question presented in this appeal is whether there was a
rational basis on which the jury could have acquitted defendant
29 A-4079-15T4
of murder and convicted him of either aggravated manslaughter or
passion/provocation manslaughter. We think not.
Defendant told police that while Sanchez was asleep, the
victim "touched" him and began undoing Sanchez's belt. Sanchez
woke up, became angry, shoved the victim to the floor and punched
him. When defendant attempted to calm Sanchez, Sanchez said, "we
have to kill him. We have to finish him." In response, defendant
went into the kitchen, grabbed a knife, returned, and stabbed the
victim once in the neck, inflicting the wound that proved fatal.
Before the victim died, however, defendant and Sanchez put him in
the bathtub, ignoring his pleas for his life. As the co-defendant
disemboweled the victim, they watched him die.
Based on defendant's account of the homicide, there was no
rational basis for the jury to acquit him of murder. A defendant
commits murder when he "purposely causes death or serious bodily
injury resulting in death," or "knowingly causes death or serious
bodily injury resulting in death." N.J.S.A. 2C:11-3(a)(1) and
(2).
Defendant, by his own admission, stabbed the victim in the
neck in response to Sanchez saying, "we have to kill him. We have
to finish him." Defendant then disregarded the victim's pleas for
life and disemboweled him. Under those circumstances, there was
30 A-4079-15T4
no rational basis for the jury to conclude defendant did not either
purposely or knowingly kill the victim.
Nor was there any evidence that would have supported a theory
that defendant stabbed the victim in the neck and disemboweled him
"in the heat of passion resulting from a reasonable provocation."
N.J.S.A. 2C:11-4(b)(2).
Defendant asserts the cause of death was a single stab wound
to the neck that severed the victim's jugular vein. Based on the
testimony of a neighboring tenant, defendant argues that "[p]rior
to the stab wound, the victim and the defendants were arguing for
more than one hour. Banging could be heard similar to moving
furniture." Defendant also points out the victim had "superficial
facial bruises as if in a fight." He adds, "[c]apping it all was
that there had been a party at which substantial liquor had been
consumed as evidenced by the number of beer bottles recovered."
Defendant asserts, "[b]ased on this factual scenario, there was a
rational basis for a jury charge on aggravated manslaughter."
Based on the same evidence, defendant asserts there was a rational
basis for passion/provocation manslaughter.
Defendant neither disputes nor refutes that he walked away
from the victim and Sanchez, retrieved a knife from the kitchen,
returned, and stabbed the victim in the neck, severing his jugular
vein, all in response to Sanchez saying "we have to kill him."
31 A-4079-15T4
Moreover, even if somehow the record could be construed to
demonstrate defendant was acting only recklessly — as opposed to
knowingly or intentionally — when he stabbed the victim in the
neck, defendant transporting the victim to the bathtub and
disemboweling him negates any rational basis for such a conclusion.
Moreover, there was no rational basis for concluding defendant
acted in the heat of passion resulting from a reasonable
provocation.
In short, no evidence provided a rational basis for the jury
to acquit defendant of murder and convict him of either aggravated
manslaughter or passion/provocation manslaughter.
VI.
In Point VIII, defendant challenges his sentence as
excessive. He contends the court gave too little weight to his
cooperation with the State by testifying at Sanchez's trial. We
are unpersuaded. A defendant's disagreement with the weight a
sentencing court gives to aggravating and mitigating factors,
N.J.S.A. 2C:44-1, is not a basis for reversing a sentence. Here,
the sentencing record both establishes the trial court followed
the sentencing guidelines and supports the court's findings of
aggravating and mitigating factors. Under those circumstances,
we will only reverse if the sentence "shock[s] the judicial
conscience" in light of the particular facts of the case. State
32 A-4079-15T4
v. Roth, 95 N.J. 334, 364-65 (1984). Considering the particular
facts of this case, the sentence does not shock the judicial
conscience.
VII.
In summary, the reasons the trial court denied defendant's
motion to suppress his confession to Bergen County Prosecutor's
Office detectives were amply supported by credible evidence in the
motion record. The errors defendant alleges occurred as the State
presented its case at trial, considered separately or
collectively, were not clearly capable of producing an unjust
result. There was no rational basis to support a jury charge on
either aggravated or passion/provocation manslaughter, and
defendant's sentence does not shock the judicial conscience. For
these reasons, we affirm defendant's conviction and sentence.
Affirmed.
33 A-4079-15T4