STATE OF NEW JERSEY VS. GIVER J. VASQUEZ (16-01-0083, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-4646-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GIVER J. VASQUEZ,
Defendant-Appellant.
________________________
Submitted September 23, 2020 – Decided August 20, 2021
Before Judges Fuentes, Whipple and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 16-01-
0083.
Joseph E. Krakora, Public Defender, attorney for
appellant (Jack L. Weinberg, Designated Counsel, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Daniel Finkelstein, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
A Middlesex County Grand Jury returned an indictment against defendant
Giver J. Vasquez charging him with the purposeful or knowing murder of Alicia
Martinez, N.J.S.A. 2C:11-3(a)(1)(2), second degree unlawful possession of a
handgun, N.J.S.A. 2C:39-5(b), second degree possession of a handgun for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(1), and fourth degree stalking, N.J.S.A.
2C:12-10(b). Defendant was tried before a petit jury over five nonsequential
days beginning on September 14, 2017, and ending on October 3, 2017. The
jury found defendant guilty of all charges.
On January 18, 2018, the trial judge sentenced defendant to a term of life
imprisonment without the possibility of parole on the murder conviction. On
March 9, 2018, the judge sua sponte
reconvened this sentencing hearing because of an error
that I made at the original sentencing hearing back in
January, wherein I sentenced this defendant on Count
[One], a murder charge, to life without parole. And my
error was that he did not meet the conditions for life
without parole sentence. The max to which I could
have sentenced him at that point was life[,] [eighty-
five] percent of which he would have to serve without
parole, with a five year mandatory period of parole
supervision.
And it was only as to that charge. So I've asked
everyone to come back, reconvene . . . so that I could
correct that error. [T]hough I'm not quite sure I'm
erring on the side of caution in giving everyone the
opportunity to make whatever extra arguments they
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want to make with regards to the sentence in
supplement of what they submitted back in January.
Without objection from counsel, the judge resentenced defendant on the
murder conviction to life imprisonment with an eighty-five percent period of
parole ineligibility and five years of parole supervision, as mandated by the No
Early Release Act, N.J.S.A. 2C:43-7.2(a).1 The amended Judgment of
Conviction (JOC) shows the judge merged all of the remaining charges into the
sentence imposed for murder, including the second degree unlawful possession
of a handgun charge. However, this conviction and the fourth degree stalking
charge do not merge with the murder conviction. State v. O'Neill, 193 N.J. 148,
163 n.8 (2007). We thus remand for the trial judge to amend the JOC
accordingly.
With respect to the merits of the State's case, defendant does not dispute
that on June 24, 2015, he shot and killed Alicia Martinez, a woman with whom
he once had a romantic relationship. Indeed, defense counsel made clear to the
1
"Solely for the purpose of calculating the minimum term of parole ineligibility
. . . a sentence of life imprisonment shall be deemed to be 75 years." N.J.S.A.
2C:43-7.2(b). Thus, defendant must serve 64.75 years before he is eligible for
parole.
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jury in his opening statement that defendant killed the victim motivated by
jealousy:
Everybody knows what this term is, and . . . this term
is jealousy. Jealousy. I have feelings for someone, and
that feeling is then brushed aside by that person for
whatever reason there may be. I'm hurt. I'm jealous.
How do I react to it? We know the way we should react,
but everybody reacts differently.
So, again, I just want you to keep an open mind, please.
Listen to the testimony. And, again, like I said, we are
not contesting, so it's not going to be like you see on
TV who done it? Who done it? Let's look at this, let's
look at that.
Giver Vasquez, he shot this young lady in her vehicle.
As a result of his actions, she died, there's no question
about that, so you can just push that aside.
[(Emphasis added).]
In this appeal, defendant raises several arguments that in no way
undermine the viability of his conviction. Mindful of the relevant legal
standards of review, we affirm defendant's conviction, but remand for the judge
to correct the errors we identified in the JOC. We derive the following facts
from the record developed before the trial court.
I.
On the night of June 23, 2015, Rene Gonzalez Rojas picked defendant up
in his gray Volkswagen Passat. The two men drove to a liquor store and bought
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beer. Although Rojas owned the car, he let defendant drive it because he had a
driver's license. Later that night defendant stopped the car in front of a house
and went inside for approximately ten minutes. Rojas remained in the car to
continue a cellphone call. When defendant returned, he had in his possession a
revolver and a box of bullets. When the prosecutor asked Rojas if defendant
said anything to him "about why he got the gun," Rojas responded: "He said he
was going to Mexico." The two men returned to Rojas's residence, where they
continued drinking. When Rojas woke up the next day on June 24, 2015, he
discovered that defendant had left his residence and his car-keys and vehicle
were missing.
That same morning, defendant recorded a video on his cellphone, where
he described in detail his intentions to kill the victim:
Hello family, this is a video that I am recording, I want
to tell you that I am saying goodbye. You know what I
am like. Something that I never learnt is to forgive
betrayal . . . you may be asking yourselves why? I did
it because nobody can forgive betrayal. You fall in
love; you can forget a person and all but never to
forgive a treachery. You can never, ever forgive
someone that has betrayed you. You can forgive
unfaithfulness, but not betrayal. At least I couldn't. I
could never do that. And in this case, it is even worse.
The truth is I was never afraid of anything, not afraid to
face whatever comes and now I am waiting for. You
can imagine who. I want to do it, I don't care if it turns
out good or bad. And well, it is what I want to do, if
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you know what I mean . . . As the saying goes he who
lives by the sword, will perish by the sword. I don't
care. It will be my choice, I hope you understand.
Please think the body does not have to do with the soul
at all. So, do whatever you want with my body. The
only thing I want you to do is to place some fucking
bottles if you want and if you can afford it, or don't do
anything please. That is if I can't make it and if on the
contrary I get to Mexico without any problems, I will
be safe. Do you understand me? I will be fine, so don't
worry about me. If I don't appear in the news saying I
was shot or whatever, I will be ok. I promise you. So
. . . see you soon. And remember, we were all born to
die at last. Thank you. Regards and see you. Do not
cry for me please. Have balls like me. Kisses. Say
goodbye to my mother, to all the family; you know . . .
As the saying goes he who lives by the sword, will
perish by the sword . . . Hasta la vista baby, as Arnold2
said. I am not high you know, a little bit drunk may be,
but I know what I am doing and I know how far I can
go so . . . please do not cry over me. Don't be cowards.
We were all born, we all die, so that's it. It is over.
[(Emphasis added).]
Around the same time defendant memorialized his macabre intentions,
Alicia Martinez was driving to work at Drive Medical in South Brunswick. By
that time, she had definitively severed any romantic relationship she once had
with defendant and had been dating a man named Manuel Santiago for
2
We presume this is a reference to an expression uttered by the fictional
character known as the "Terminator," played by the actor Arnold
Schwarzenegger in a series of dystopian science fiction movies.
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approximately three months. The State called Santiago as a witness. He
testified that Martinez called him that morning on her way to work in a panic,
afraid that someone was following her. The prosecutor followed up on this line
of questioning:
Q. Do you know why she was scared?
A. Uh, she just told me that somebody was following
her, and someone was texting her, telling her that she
was going to die today, and what color shirt she was
wearing, and that type of stuff.
....
Q. What did you do after you talked to her?
A. I tried to tell her to calm down because I didn't really
know why she was so frantic, you know. I didn't
believe, you know, what she was telling me. You know,
I thought it was just, you know, who normally knows
-- who's going to believe something like that, you
know?
So I didn't really pay too much into it, but I waited for
her to get to work because, you know, she was scared,
so I waited outside.
Q. Did you stay on the phone with her?
A. Yeah, as -- for as long as I could, then she hung up,
you know.
Q. Did you, at any point, attempt to try to go find her?
A. No, not at no point.
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Q. And you said you waited in the parking lot[?]
A. Yes.
Santiago testified that a few seconds after Martinez pulled into her parking
space located directly in front of the building, a gray car pulled in closely behind
her, making it impossible for her to back out of the space. As he described it:
"I see a car just zoom in behind her . . . [m]aybe a few seconds . . . it happened
very quick. . . ." He saw someone get out of the car that was blocking Martinez,
and "heard shots go off . . . when [he] looked, [he] saw that the person had just
got back in the car quick, as soon as that happened, and left[.]" At this point,
the prosecutor asked Santiago:
Q. Before she got to the parking lot, did she, at any
point, say anything about a weapon being involved?
A. Oh, yeah . . . she told me that he showed her a gun.
He pulled up next to her, and showed her a gun.
Q. So after you hear the shots, the vehicle that you saw
pull up behind her, where does it go?
A. It parked enough where it could still pull out of the
other entrance, and go around, and pull out the same
way he came in.
Q. And what did you do next?
A. First thing I did was run up to the car, and there I
saw Alicia barely breathing.
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Patrolman Ryan Bartunek of the Township of South Brunswick Police
Department was the first law enforcement agent to respond to the scene of the
shooting. When Bartunek approached Martinez's driver's side window, he found
her "slumped over" towards the passenger seat without any discernable signs of
life. Medical Examiner Dr. Diane Karluk performed the autopsy. She declared
Martinez's manner of death a homicide caused by two gunshots to the head.
Ericka Loaiza was decedent's best friend. She brought text messages
exchanged by decedent and defendant to the police officers investigating the
homicide. Although these electronic messages were written in Spanish, Loaiza
translated their content at trial without objection. The texts document a chilling
dialogue in which defendant threatens Martinez's life. In one text, Martinez
poignantly asked defendant: "Tell me, will you kill me, so I can say goodbye to
my mom and dad." Defendant's responses to the victim's text messages are
eerily reminiscent of defendant's videorecorded diatribe, in which he explicitly
admits to killing Martinez based strictly on his pathological jealousy and
wounded machismo pride. One text message contained the following menacing
language:
I will make your wish come true and it will be with the
same -- it will be the same way that you bit me. I want
to -- I want to finish with everything and block -- and
block myself from here. Anyway since the last time, I
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will be right to you. Go fuck your mom, you fake ass
bitch. Don't worry about the video. It will say
everything, and this way, you'll be famous.
Independent of these text messages, Loaiza's testimony corroborated
defendant's overly possessive behavior during the nearly three-year relationship
he had with Martinez. She described their relationship as "crazy," and driven
by "so much drama between them." Loaiza also pointed out that Martinez dated
other men during the time she was involved with defendant.
Law enforcement agents arrested defendant the day after the shooting in
the home of Richard Crosby, an old acquaintance of defendant, located on West
Bridge Street, New Hope, Pennsylvania. A pat-down search incident to his
arrest revealed defendant had a bullet in his pocket. The arresting officers also
found a bag of bullets and a revolver in the bedroom used by defendant. Without
objection from defense counsel, the trial judge admitted Middlesex County
Prosecutor's Office (MCPO) Detective Andrew Winter as an expert witness in
the area of forensic ballistics. Detective Winter testified that the .38 caliber
revolver found in defendant's bedroom was operational. He also confirmed that
this revolver was the weapon used to kill Martinez.
On the same day as his arrest, defendant was transported to the
headquarters of the New Hope Police Department where he was processed and
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interrogated by MCPO Detective Craig Marchak and Detective Monica Shearer
from the South Brunswick Police Department. The interrogation began at 10:15
p.m. The detectives read defendant his constitutional rights under Miranda.3 He
initialed each of the rights as read to him and signed the part in which he
voluntarily agreed to waive his rights and speak with the detectives without an
attorney present.
However, the record also reveals that defendant expressed some hesitation
regarding the waiver of his Miranda rights. This point of possible confusion
was captured in the video of the interrogation, as the following exchange
between defendant and Detective Marchak shows:
DETECTIVE MARCHAK: I'm just going to read the
remainder of the form to you . . . I waive my Miranda
rights. I have been advised of my rights. I understand
what my rights are. I will voluntarily speak with you
and answer your questions. And if you wish, I'm going
to ask you to sign there, date, and then I'll give you the
date and time.
DEFENDANT: Do I have to, to answer the question?
DETECTIVE MARCHAK: You don't have to answer
any questions. We could, or, at any time you can stop
me. You don't have to answer all questions, or anything
like that.
DEFENDANT: I don't have to sign it?
3
Miranda v. Arizona, 384 U.S. 436, 467 (1966).
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DETECTIVE MARCHAK: You don't have to sign it.
DEFENDANT: I don't want to sign.
DETECTIVE MARCHAK: You don't want to sign it?
Okay. All right.
....
DETECTIVE MARCHAK: All right then. Okay. I'll
be right back.
Detectives Marchak and Shearer stepped out of the interrogation room to
permit Marchak to consult with his supervisor. Marchak returned to the
interrogation room about a minute later and addressed defendant as follows:
DETECTIVE MARCHAK: Do you understand your
rights?
DEFENDANT: Yes.
DETECTIVE MARCHAK: Okay. . . . Is there anything
that you don't understand about them?
DEFENDANT: The last one.
DETECTIVE MARCHAK: Which one? Point it out to
me. This one? All right. I'll explain it to you.
Basically, the first five which (inaudible) that you
initialed, okay, were your Miranda rights. All right?
That's your rights [sic]. Okay? That's what you have
before I ask you any questions, okay? The bottom part
of it is just saying that you have been advised, which
means that I read to you number [one] through [five],
and that you understand them, which, is there any one
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that you possibly don't understand in that [one] through
[five]?
DEFENDANT: No.
DETECTIVE MARCHAK: Okay. So, basically, the
first part is advised, which I read these to you. You
reviewed them. Second is understanding what my
rights are. I, being you, okay, which you say you
understand them, and that you will voluntarily speak
with me and answer some questions.
DEFENDANT: Okay.
DETECTIVE MARCHAK: Okay? All right. So . . . I'll
explain the whole process . . . what you're going to do
is, if you agree with the waiver, that you'll sign it . . .
me and you can have a conversation. And then I could
ask you a couple questions, granted you, again,
understand your rights, and that you've been advised,
which you say you[] understand . . . I advised you of
your rights, I went through your rights. You got a little
better understanding of it? All right? And we're going
to work like this the whole time, all right?
DEFENDANT: (inaudible)
DETECTIVE MARCHAK: So, then, I'll ask you, since
you agree to sign, and we'll work like this the whole
time, all right? If you don't understand something,
speak up. I'm going to explain it to you.
Defendant signed the Miranda waiver form at 10:24 p.m., approximately
nine minutes after the interrogation began. Detective Marchak testified that all
interactions he had with defendant, including the time devoted exclusively to
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the interrogation, was videorecorded. The video of defendant's interrogation
was admitted into evidence and played in the courtroom for the jury at trial.
During the interrogation, defendant told the detectives that he decided to
kill Martinez the day before the actual shooting. He also acquired the handgun
and ammunition on the afternoon of the day before the shooting. Defendant
admitted to surreptitiously placing a global positioning satellite (GPS) device
on Martinez's car to track her movements. This was how he discovered she was
romantically involved with another man.
II.
Against these facts, defendant raises the following arguments on appeal.
POINT I:
THE COURT ERRED WHEN IT DENIED THE
DEFENDANT'S REQUEST FOR SPECIFIC
LANGUAGE CONCERNING THE CONTINUING
COURSE OF ILL TREATMENT AS PART OF THE
CHARGE ON PASSION PROVOCATION
MANSLAUGHTER. THE FAILURE TO INCLUDE
THIS EXPANDED DEFINITION DEPRIVED THE
DEFENDANT OF AN APPROPRIATE CHARGE ON
THIS ISSUE AND THEREFORE DEPRIVED THE
DEFENDANT OF A FAIR TRIAL.
POINT II:
THE COURT ERRED WHEN IT DENIED THE
DEFENDANT'S MOTION TO SUPPRESS THE
ADMISSION OF HIS STATEMENT CONFESSING
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TO THE CRIME. DETECTIVE MARCHAK DID
NOT OBTAIN A KNOWING, INTELLIGENT AND
VOLUNTARY WAIVER BEFORE PROCEEDING
TO TAKE THE DEFENDANT'S STATEMENTS.
POINT III:
THE FAILURE TO CHARGE A LIMITING
INSTRUCTION ON THE PROPER USE OF THE
TEXT MESSAGES AND THE COMMENTS BY THE
VICTIM TO MS. LOAIZA DEPRIVED THE
DEFENDANT OF A FAIR TRIAL (NOT RAISED
BELOW.)
POINT IV:
THE TRIAL COURT SHOULD HAVE GRANTED
THE DEFENDANT'S MOTIONS TO DISMISS THE
STALKING CHARGE.
POINT V:
THE COURT DID NOT TAKE INTO
CONSIDERATION ALL APPROPRIATE CODE
SENTENCING PROVISIONS. THE COURT HAS
IMPOSED A SENTENCE THAT SHOCKS THE
JUDICIAL [CONSCIENCE].
We discern no legal basis to interfere with the jury's verdict or grounds to
support a claim of reversible error by the trial judge. We start by addressing
defendant's argument concerning the jury instructions on passion-provocation
manslaughter. Defendant argues that the trial judge committed reversible error
by refusing to expand the scope of the passion-provocation manslaughter
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defense to include: "a continuing course of ill treatment by the decedent against
the defendant, or a third person, with whom the defendant stands in close
relationship." The trial judge considered and denied defendant's request at the
charge conference. We agree with the trial judge's decision.
The Legislature codified the "passion-provocation" defense, N.J.S.A.
2C:11-4(b)(2), to reduce what would otherwise be murder to voluntary
manslaughter. The defense applies when "[a] homicide which would otherwise
be murder under [N.J.S.A.] 2C:11-3 is committed in the heat of passion resulting
from a reasonable provocation." N.J.S.A. 2C:11-4(b)(2). The trial judge
correctly denied defendant's request to instruct the jury to consider this defense
because the record shows defendant decided to kill his former romantic partner
the day before he carried out the homicide.
He surreptitiously placed a GPS device under her car to track her
movements. He exchanged chilling text messages with his victim through which
he threatened her life. In his videorecorded message to his family, defendant
declared his culpability with a sense of pride. He expressed no remorse because
he was driven by a homicidal, misogynistic rage to vindicate his wounded pride.
The evidence shows defendant viewed Martinez's decision to end her
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relationship with him not as an act of self-determination, but as an unacceptable
act of betrayal that warranted the ultimate punishment.
Furthermore, defendant did not act on an impulse; he methodically stalked
his victim as she drove to work. While on the road, he pulled his car parallel to
the victim's, took out his handgun, and showed it to her to as a menacing message
of what was to come. When the victim reached her destination and stopped at
her designated parking space, defendant drove his car directly behind her car to
block any attempt to escape. He then stepped out of his car, walked over to
where she sat in her car, and shot her twice in the head. Defendant did not kill
his victim "in the heat of passion resulting from a reasonable provocation."
N.J.S.A. 2C:11-4(b)(2). Passion-provocation manslaughter is not applicable
here. See State v. Carrero, 229 N.J. 118, 129-30 (2017). This was a calculated,
purposeful, knowing murder.
Defendant also argues that the trial judge erred by denying his motion to
suppress his confession because there was insufficient evidence to show, beyond
a reasonable doubt, that he knowingly, voluntarily, and intelligently w aived his
Miranda rights. Defendant also claims that the interrogating officers failed to
honor his requests to remain silent. In response, the State argues the record
shows that defendant voluntarily, knowingly, and intelligently waived his
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Miranda rights. Furthermore, defendant's argument in this respect is legally
inconsequential because he does not dispute that he killed the victim. The only
issue in contention is his state of mind at the time he took the victim's life. We
agree with the State's position. Defendant's argument in this context lacks
sufficient merit to warrant further discussion in a written opinion. R. 2:11-
3(e)(2).
Defendant next argues that the trial judge erred by denying his motions to
dismiss the stalking charge. We disagree. Pursuant to N.J.S.A. 2C:12-10(b),
"[a] person is guilty of stalking . . . if he purposefully or knowingly enga ges in
a course of conduct directed at a specific person that would cause a reasonable
person to fear for his safety . . . or suffer other emotional distress." A "course
of conduct" includes repeatedly threatening, monitoring, and following a person.
N.J.S.A. 2C:12-10(a)(1). When evaluating a motion for dismissal made by
defendant after the submission of all evidence, our courts must consider not only
the evidence presented by the State, but "the entirety of the evidence. . . ." State
v. Williams, 218 N.J. 576, 594 (2014).
Here, the record shows defendant placed a GPS tracker on Martinez's
vehicle and threatened her with violence on multiple occasions. The trial judge
properly denied both motions to dismiss the stalking charge because there was
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sufficient evidence from which the jury could find, beyond a reasonable doubt,
that defendant purposefully or knowingly engaged in a course of conduct
specifically directed at Martinez, from which a reasonable person under her
circumstances would fear for their safety or suffer great emotional distress.
Based on this evidence, the trial judge properly denied defendant's motion for a
judgment of acquittal under Rule 3:18-2. State v. Fuqua, 234 N.J. 583, 590-91
(2018).
Finally defendant's argument attacking the length of the sentence imposed
by the trial judge lacks sufficient merit to warrant further discussion in a written
opinion. R. 2:11-3(e)(2). However, as we noted at the start of this opinion, we
are compelled to remand the case for the judge to correct the JOC to reflect
separate sentences for defendant's conviction for second degree unlawful
possession of a handgun and fourth degree stalking. These crimes do not merge
with the murder conviction. O'Neill, 193 N.J. at 163 n.8.
Affirmed and remanded to correct the JOC.
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