STATE OF NEW JERSEY v. CARMELO CRUZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0568-05T40568-05T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CARMELO CRUZ, a/k/a

ISHMAEL SERRANO,

Defendant-Appellant.

_______________________________________

 

Submitted September 23, 2008 - Decided

Before Judges Wefing, Parker and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-11-1359.

Yvonne Smith Segars, Public Defender, attorney for appellant (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged under Middlesex County Indictment No. 02-11-1359 with murder, N.J.S.A. 2C:11-3a(1)(2) (count one); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (counts two and three); hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1) (counts four and five); and fabrication of physical evidence, N.J.S.A. 2C:28-6(2) (count six). Defendant was tried to a jury, which found him guilty on all charges. Defendant appeals from the judgment of conviction entered on July 26, 2005. For the reasons that follow, we affirm the convictions on counts two through five, reverse the conviction on count one, and remand for a new trial on count one.

I.

We briefly summarize the facts, based on the evidence presented at defendant's trial. On Friday, September 6, 2002, Refugia Ruiz Olmedo (Olmedo) was residing in an apartment in New Brunswick with defendant, who was her husband, and her three children, A.C.R., L.C.R., and C.C.R. Olmedo had been drinking beer with A.C.R., who was seventeen years old at the time. Sometime after 11:00 p.m., Olmedo went to the bedroom that she shared with defendant.

Defendant later told the police that he returned home at about 12:15 a.m. Olmedo was lying down on their bed. According to defendant, Olmedo said that she had been drinking because she was in love with another man. She told defendant that, in America, women were free and she could do as she pleased. Defendant said that he believed Olmedo was cheating on him with another man. Olmedo reportedly told defendant that other men made love better than he did. Defendant said that she turned off the light in the bedroom and laid down on the bed to go to sleep. Defendant's young son, C.C.R., who was ten-years old at the time, also was in the bedroom sleeping.

Defendant told the police that, after he laid down on the bed, Olmedo approached him with a cord and started to bring it towards his neck. Defendant said that he had obtained the cord on one of his previous jobs, and Olmedo had placed it under their bed. Defendant stated that, as Olmedo approached him with the cord, he pushed her away. According to defendant, Olmedo "got tangled up [in] the cord" and "got strangled." He said that the cord was "completely around her neck" and she fell to the floor. Defendant admitted that, after Olmedo fell, he struck her head against the floor twice and caused her head to bleed.

Defendant said that the cord was "tight around the nape of [Olmedo's] neck." She made noises "[l]ike she was choking." Olmedo eventually stopped choking and moving. Defendant believed that Olmedo was dead. He put her body in two black plastic garbage bags. Defendant took the body out of the house and put it in his car. Defendant drove on Route 130 to a wooded area in South Brunswick. He dragged the body into the woods, where he covered it with leaves so that "it couldn't be seen."

A.C.R. testified that she woke early in the morning and observed defendant mopping the floor in the living room. A.C.R. thought this was odd because defendant never did any cleaning in the apartment. She noticed that her mother was not at home. Initially, she thought that her mother had gone to work. A.C.R. remained at home until the afternoon. She planned to go to Perth Amboy with a friend after her mother returned from work. Olmedo did not return, and defendant drove A.C.R. and her friend to Perth Amboy.

A.C.R. arrived home at 2:00 a.m. on Sunday, September 8, 2002, and went directly to bed. Later that morning, defendant woke her and told her that Olmedo had not come home. He said that he wanted to go to the police and report Olmedo missing. A.C.R. went with defendant to the police station. Because defendant did not speak English fluently, A.C.R. interpreted his statements for the police. Defendant told the police that on Saturday morning, Olmedo had woken up, taken some black bags, left the apartment, and had not returned.

Later that day, A.C.R. went to the laundromat to wash clothes. When A.C.R. was finished with her laundry, defendant picked her up. Defendant told A.C.R. that he had something to give her. It was a letter. A.C.R. testified that it appeared that defendant had written the letter, although defendant insisted that he did not do so. The envelope contained a map. Defendant told A.C.R. that the map identified "a place where they had" Olmedo.

According to A.C.R., defendant said that he had already been to the location with A.C.R.'s brother, L.C.R., and they had observed a "plastic, black bag." Defendant stated that a gang was responsible for Olmedo's disappearance. Defendant told A.C.R. to call the police. When the police arrived at the apartment, she informed them about the map and said that defendant could take them to the location. Later that night, A.C.R. learned that her mother was dead.

L.C.R. testified that, on Friday, September 6, 2002, he returned home between 11:00 p.m. and midnight. L.C.R. said everyone appeared to be asleep. L.C.R. had something to eat and left to go to his cousin's home. He returned around 5:00 a.m. and went to bed. L.C.R. awoke later in the morning and observed defendant cleaning the apartment. L.C.R. left. He returned on Saturday night and slept in the apartment.

The following morning, defendant asked L.C.R. if he knew where his mother was. Defendant said that she was missing. L.C.R. told defendant that his mother was probably working. Defendant went with L.C.R. and A.C.R. to the police station, and reported Olmedo missing. Defendant dropped A.C.R. off at the laundromat; thereafter, defendant and L.C.R. returned home.

Later, defendant told L.C.R. that he found an envelope on the trunk of the car. L.C.R. testified that he had not seen an envelope in or on the trunk. Defendant handed L.C.R. the envelope and said that he wanted to go look for Olmedo. L.C.R. said that he did not think that his mother was missing; however, he went with defendant and they drove on Route 130. Defendant stopped to speak to a police officer. Defendant told the officer that Olmedo was missing and he had a map that indicated where she could be found. The officer said that Olmedo probably would return, and told them to go home.

Defendant and L.C.R. did not return home; rather, they continued along Route 130. Defendant was driving but, according to L.C.R., he was not "looking at the map." Defendant pulled over near a wooded area. He instructed L.C.R. to knock on the door of a nearby house and call the police, but L.C.R. refused because they had just spoken with a police officer who told them to go home. Defendant crossed the street and headed into the woods. L.C.R. followed, but remained about five feet behind the defendant.

L.C.R. testified that defendant walked straight, stopped and cried for about two seconds, and then proceeded directly towards a bag covered with leaves. Defendant took the leaves off of the bag and said, "that's your mom in there." Defendant told L.C.R. to open the bag but he refused and walked away. They left the area and returned home. Defendant picked up A.C.R. at the laundromat and showed her the map. She recognized defendant's handwriting and called the police.

Sergeant Robert Tierney (Tierney) of the New Brunswick Police Department responded to the apartment. Officers Hayes and Santiago were there when he arrived. Defendant handed Tierney the map. Tierney, Santiago and defendant drove to South Brunswick. They met two officers from the South Brunswick Police Department. Defendant led the officers into the woods and pointed out the plastic garbage bag. The bag contained Olmedo's body. Defendant was taken to the police station, and he agreed to provide a statement.

Defendant raises the following issues for our consideration on this appeal:

POINT I

THE TRIAL JUDGE ERRED IN FINDING DEFENDANT COMPETENT TO ASSIST HIS ATTORNEY AT TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 5, 9 & 10.

POINT II

THE TRIAL JUDGE IMPROPERLY CHARGED RETREAT AND THUS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10 (Not Raised Below).

POINT III

THE JURY INSTRUCTION ON THE SUBSTANTIVE OFFENSE OF MURDER FAILED TO TELL THE JURY THAT A NECESSARY PRECURSOR TO CONVICTION WAS PROOF BEYOND A REASONABLE DOUBT THAT THE DEFENDANT DID NOT ACT JUSTIFIABLY IN SELF-DEFENSE AND THUS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

POINT IV

DEFENDANT'S USE OF TWO NAMES WAS IMPROPERLY USED TO IMPLY THAT HE WAS NOT A TRUTHFUL PERSON IN VIOLATION OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

POINT V

THE DEFENDANT'S SENTENCE WAS EXCESSIVE AS NO JUSTIFICATION EXISTED FOR CONSECUTIVE SENTENCES. (Not Raised Below).

II.

We turn first to defendant's contention that the judge erred by finding that he was competent to assist his attorney in his own defense.

The judge conducted a competency hearing on April 22, 2005 and April 27, 2005. At the hearing, defendant presented testimony from Dr. Ernesto Perdomo, a clinical psychologist. Dr. Perdomo testified that he evaluated defendant on September 16, 2004 for purposes of determining whether defendant was competent to participate in a Family Part matter. The doctor said that the competency analysis he performed for the Family Part action was the same analysis that is used for criminal cases.

Dr. Perdomo testified about his diagnosis of defendant. He diagnosed psychosis, not otherwise specified (NOS), and to rule out paranoid delusional disorder. He stated that defendant appeared to have a history of delusional jealousy disorder, which "seemed to be a grandiose kind of delusion." The doctor testified that defendant also had a "revelation" or "mission to evangelize people in jail." He said, "I thought it was more like a mixed kind of delusional disorder, a little here, a little there." He added that, "[t]here seems to be some paranoid tendency, because of the nature of the delusion, the religious nature of the delusions."

Dr. Perdomo was asked whether this disorder would affect defendant's ability to participate in a court proceeding. He testified:

A. Well, he has a belief system, that he believed totally that this happened to him.

Q. When you said, that this totally happened to him -

A. Well, that he has this voice of the angel telling him to bury his wife. The voice of an angel telling him not to kill himself. Then he also has these revelations from God. And he mentioned that oil was coming out from his head, anointing him. He mentioned talking to God. He mentioned seeing heaven. He mentioned all this. Very strong kind of revelations, that he saw and heard, and were very vivid to him. So, his behavior is going to be affected and guided by this belief system. And this is what the delusion is.

Q. That would, in your opinion, affect his ability to cooperate or participate in his defense or participate [with his attorney]?

A. Yes. I mentioned the reason why. Everything that he does, in terms of defending himself, or cooperating with the defense, would be tainted, and influenced by the belief system.

Dr. Perdomo was asked whether he thought his diagnosis might have changed from the time of his evaluation. He stated that a "delusional disorder is very difficult to treat, and [it] is not very likely to change." He said that it was most likely that the "delusional system, belief system, is still there." He added that even with medication, "it is very difficult to change that kind of disorder." The doctor noted, however, that defendant understood the criminal process.

On cross-examination, Dr. Perdomo stated that he had not seen defendant since the evaluation in September 2004, and he did not know whether defendant was still experiencing revelations, hallucinations or delusions. He stated that he was unaware defendant had been evaluated at the jail. He knew defendant was not on medication, had never been in lock down status, never been sent to a psychiatric hospital, and had never been put on suicide watch.

The doctor agreed that he had performed a forensic evaluation, rather than a clinical evaluation for purposes of treatment. He conceded that, in a forensic evaluation, the subject may have a motivation to deceive the evaluator. The doctor also admitted that, in a forensic evaluation, he had to take malingering into account but he stated that he did not believe that defendant was a malingerer.

Dr. Perdomo agreed that there are tests that could be administered to determine if defendant was malingering but he did not administer those tests. He said that he based his evaluation on defendant's "demeanor, his thought process, [and] the content of his statements[.]"

The State presented testimony from Dr. Guillermo Parra, a licensed psychologist. Dr. Parra testified that he evaluated defendant on April 1, 2005. He administered four psychological tests to defendant, gave defendant an opportunity to tell his story, reviewed the discovery in the case, listened to defendant's taped confession, read the police reports and witness statements, and reviewed the autopsy reports.

The doctor discussed the experience that defendant had described. He stated that

[t]his is [a] very private, a very personal experience, which could best be qualified as a spiritual experience. This is not a hallucinatory experience. And, at no point, did [defendant] indicate that he was seeing this happening. He was not seeing this with his eyes. He was not hearing the voices, through his auditory channels or with his ears. He told me that this was . . . sort of like seeing it with a spiritual eye. But it's not . . . a[n] hallucination that he was having.

Dr. Parra testified that, to a reasonable degree of psychological certainty, he believed defendant was competent to stand trial under the standard applicable in criminal cases. He stated that defendant could assist the defense. He found no evidence that "a psychotic process was operative at this time."

Dr. Parra additionally testified that defendant said that he heard a voice telling him to make sure that his wife received a proper burial. The doctor stated that he did not know if this was an hallucination. He added, "A[n] hallucination doesn't occur just once. [Hallucinations] don't occur as a discrete event. They are an on-going process[.]" He said that he found "no evidence that would substantiate the presence of a[n] hallucinatory process."

The judge placed her decision on the record on April 27, 2005. The judge found that defendant was competent to stand trial. She considered the differing opinions of the two experts, and found that both were credible witnesses. The judge noted, however, that Dr. Perdomo had performed his evaluation well before the hearing. She also noted that both experts had agreed that defendant had "some type of experiences" but disagreed as to whether these "experiences" were hallucinations or spiritual in nature.

The judge concluded that defendant's "experiences" would not prevent him from intelligently consulting with his attorney in preparing his defense. In reaching this conclusion, the judge relied upon Dr. Parra's testimony and his conclusion that defendant was competent to stand trial. The judge added that, if anything happened during the trial that would cause her to reconsider her decision, she would do so.

Defendant argues that the judge erred by finding that he was competent to assist his attorney at trial. Defendant contends that his "delusions" affected his decision not to testify.

"The test for competency to stand trial arises from basic concepts of due process." State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007). At a minimum, it must be shown that the defendant "'has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding'" and "'a rational as well as a factual understanding of the proceedings against him.'" Ibid. (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 789, 4 L. Ed. 2d 824, 825 (1960)). The test for competency in New Jersey is codified in N.J.S.A. 2C:4-4. Id. at 47-48. "[T]he State bears the burden of establishing competence by a preponderance of the evidence." Id. at 47 (citing State v. Lambert, 275 N.J. Super. 125, 129 (App. Div. 1994)).

"[O]ur role in reviewing the decisions of a trial judge respecting competence [is] 'typically, and properly, highly deferential.'" State v. M.J.K., 369 N.J. Super. 532, 548 (App. Div.) (quoting State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000)), certif. granted, 189 N.J. 549 (2004), appeal dismissed, 187 N.J. 74 (2005). We do not review the factual record "from the point of view of how [we] would decide the matter if [we] were [a] court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Rather, we defer to the findings of the trial judge that are "substantially influenced by [her] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. Moreover, the trial judge's findings are binding on appeal if they "reasonably have been reached on sufficient credible evidence present in the record." Id. at 162.

We are satisfied that the trial judge's finding that defendant was competent to assist his attorney is supported by sufficient credible evidence. Here, the judge heard testimony from two experts, who agreed that defendant understood the nature of the proceedings but disagreed as to whether he could meaningfully participate in his defense. Dr. Perdomo opined that defendant's "delusions" could impair his ability to assist counsel in his defense, whereas Dr. Parra said that defendant's "experiences" were spiritual in nature and did not prevent him from intelligently consulting with his attorney.

The judge found Dr. Parra's testimony to be more persuasive than that of Dr. Perdomo in part because Dr. Parra's evaluation occurred closer in time to the trial. As we noted previously, Dr. Perdomo admitted that he had not seen defendant since the evaluation in September 2004, and he did not know whether defendant was continuing to experience revelations, hallucinations or delusions. Moreover, Dr. Parra's evaluation was based on a series of psychological tests. We are satisfied that the judge did not abuse her discretion as fact-finder in choosing to accept Dr. Parra's opinion that defendant was competent to assist in his defense and rejecting the contrary opinion expressed Dr. Perdomo.

Defendant additionally argues that the judge erred by refusing to revisit her competency finding when defendant elected not to testify. A trial judge "has a continuing obligation to revisit the issue if warranted[.]" Purnell, supra, 394 N.J. Super. at 49 (citing State v. Spivey, 65 N.J. 21, 40 (1974)).

In this matter, after defendant advised the court that he had "[h]anded everything to God" and did not wish to testify, the judge stated:

I understand that you have a strong belief in God, but at this point in the trial you have to make a decision as to whether you would like this jury to hear what you have to say about these facts or whether you wish to remain silent and force the State to their proofs without any statement from you.

Defendant told the court that he wished to remain "in silence." He also stated that he understood that he had the right to testify. Defense counsel also said that he had discussed the matter with his client and that defendant had elected not to testify. Defense counsel did not state that defendant was not competent to make that decision.

We are convinced that the judge did not err by refusing to revisit the issue of competence when defendant elected not to testify. As the judge observed, defendant's statements appeared to reflect his religious beliefs, and there is no indication on the record that defendant was experiencing any hallucinations or suffering from any delusions when he decided not to testify.

III.

We turn to defendant's contention that the judge erred in her instructions to the jury regarding self-defense.

The judge stated that the defendant had argued that, if the State proved he had used or threatened to use force on another person, then such force was used "justifiably . . . for his self-protection." The judge explained that, under the law:

the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. In other words, self- defense is the right of a person to defend against any unlawful force. Self-defense is also the right of a person to defend against serious threatened unlawful force that is actually pending or reasonably anticipated. When a person is in imminent danger of bodily harm the person has the right to use force or even a deadly weapon when that force is necessary to prevent the use against him of unlawful force. The force used by the defendant must not be significantly greater than and must be proportionate to the unlawful force threatened or used against the defendant.

The judge told the jury that the law only requires a reasonable and not necessarily a correct judgment on the part of the defendant. She stated that:

[e]ven if you find the use of deadly force was reasonable there are limitations on the use of deadly force. If you find the defendant[,] with the purpose of causing death or serious bodily harm to another[,] provoked or incited the use of force against himself in the same encounter, then the defense is not available. If you find that the defendant knew he could avoid the necessity of using deadly force by retreating, providing that the defendant knew he could do so with complete safety, then the defense is not available to him.

In your inquiry as to whether a defendant who resorted to deadly force knew that an opportunity to retreat with complete safety was available, the total circumstances, including the attendant excitement accompanying the situation, must be considered.

The State has the burden to prove to you beyond a reasonable doubt that the defense of self-defense is untrue. This defense applies if all of the conditions or elements previously described by me exist. The defense must be rejected if the State disproves any of these conditions beyond a reasonable doubt.

The same theory applies to the issue of retreat. Remember, the obligation of the defendant to retreat only arises if you find the [defendant resorted] to the use of deadly force. The burden is upon the State to prove beyond a reasonable doubt that the defendant knew he could have retreated with complete safety. If the State carries the burden, then you must disallow this defense. If the State does not carry this burden and you do have a reasonable doubt, then it must be resolved in favor of the defendant and you must allow the claim of self-defense and acquit the defendant of this charge.

Defendant argues that the judge erred by instructing the jury that he had a duty to retreat. This contention was not raised at trial. Therefore, we must determine whether the charge was erroneous and whether the error was clearly capable of producing an unjust result. R. 2:10-2.

The Criminal Code provides that use of force is justifiable "when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4a. The use of deadly force is not justifiable if "[t]he actor knows that he can avoid the necessity of using such force with complete safety by retreating[.]" N.J.S.A. 2C:3-4b(2)(b). However, "[t]he actor is not obliged to retreat from his dwelling, unless he was the initial aggressor[.]" N.J.S.A. 2C:3-4b(2)(b)(i).

Prior to 1999, N.J.S.A. 2C:3-4b(2)(b)(i) stated that "[t]he actor is not obliged to retreat from his dwelling, unless [the actor] was the initial aggressor or is assailed in [the actor's own] dwelling by another person whose dwelling the actor knows it to be." L. 1978, c. 95. Thus, under the statute in effect prior to 1999, a person did not have a duty to retreat "from his dwelling" if the individual was "assailed" by a cohabitant of the dwelling. See State v. Gartland, 149 N.J. 456, 467 (1997). However, N.J.S.A. 2C:3-4b(2)(b)(i) was amended by L. 1999, c. 73, to state that "the actor is not obliged to retreat from his dwelling, unless he was the initial aggressor[.]" As a result of the amendment, "the duty to retreat by a person attacked in the person's home [was] eliminated in all cases except if the person instigated the altercation." Assembly Judiciary Committee, Statement to S. 271 (November 16, 1998).

Here, the trial judge erred by instructing the jury that self-defense was not available to defendant if he knew that he could avoid the necessity of using deadly force by retreating. The State concedes that the charge was inconsistent with the law, but argues that the error was harmless because the self- defense charge should never have been given at all. We disagree.

In our view, the evidence provided a rational basis for the self-defense charge. The State maintains that the only deadly force used by defendant was the striking of Olmedo's head on the floor, and at that point in time Olmedo no longer posed a threat to defendant. But defendant testified that when Olmedo attacked him with the cord, he pushed her away, she became entangled in the cord, and she was strangled. The jury therefore could infer from defendant's statement and the other evidence presented at trial, that defendant did, in fact, strangle Olmedo. Furthermore, evidence was presented at trial which indicated that the strangulation alone could have caused Olmedo's death.

The State also contends that self-defense was not a material issue at the trial. Again, we disagree. The State notes that defendant's principal contention was that Olmedo's death was not caused knowingly or purposefully, but rather in the heat of passion. In his summation, defense counsel stated:

This is not an individual who planned, who had a purpose when he came home to commit this murder. This is an individual who did get into a fight, did get into a confrontation, did bang the [victim's] head on the floor, did pull on a rope that resulted in the death of [the victim], but [defendant is] not somebody [who] purposefully and knowingly intended to kill someone. I suggest to you [that] this was done during the heat of the argument, an individual that maybe had a conscience, an individual who is sorry for what happened, an individual [who] loved his wife . . . an individual who did not want this to happen, did not do it intentionally, [but] did it because of [a] confrontation.

Despite these statements, defense counsel never conceded that self-defense was not an issue in the case. Indeed, at the charge conference, defense counsel took the position that, if defendant's statement was introduced into evidence, the jury should be instructed on self-defense. Moreover, in his summation, defense counsel told the jury that the judge would be charging them on self-defense. He asked the jury to "consider that [self-defense] may apply to this particular case." Thus, while counsel did not emphasize the point, self-defense remained an issue in the case.

We therefore must determine whether the error in the jury instruction on self-defense is reversible error. It is well established that "'clear and correct jury instructions are essential for a fair trial[.]'" State v. Rodriguez, 195 N.J. 165, 175 (2008) (quoting State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, ___ U.S. ___, 127 S. Ct. 1285, 167 L. Ed 2d 104 (2007)). Furthermore, an error that has a direct impact upon "'sensitive areas of a criminal trial are poor candidates for rehabilitation' under the plain error theory." Ibid. (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Such "[e]rroneous instructions on matters or issues that are material to the jury's deliberation are presumed to be reversible error in criminal prosecution." Jordan, supra, 147 N.J. at 422. To constitute plain error, "not every possibility of an unjust result will suffice." Ibid. "[T]he possibility must be 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" Ibid. (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

In our judgment, the erroneous jury instruction on self- defense raises a sufficient doubt as to whether the jury reached a result that it might not otherwise have reached. The jury may have believed that defendant was confronted with a threat of death or serious injury when Olmedo approached him with the cord and brought it towards his neck. The jury may have concluded that defendant had to employ deadly force to protect himself. The jury also may have concluded that self-defense did not apply because defendant could have avoided the use of deadly force by retreating.

The possibility that the jury could have arrived at these conclusions is sufficient to raise a reasonable doubt as to whether the jury reached a result that it might not otherwise have reached had it been correctly charged on self-defense. Therefore, we reverse defendant's conviction for murder, and remand the matter for a new trial on that charge. In view of our determination that a new trial is required on count one, there is no need for us to address the contentions raised by defendant in Points III, IV, and V of his brief.

Furthermore, because defendant has not raised any additional arguments with regard to his convictions for possession of a weapon for an unlawful purpose (counts two and three), hindering apprehension or prosecution (counts four and five); and fabrication of physical evidence (count six), we affirm those convictions.

Affirmed in part, reversed in part, and remanded for a new trial on count one.

 

We note that, after the closing arguments and the jury charge, defendant asked to testify; however, the judge denied the application because the evidentiary portion of the case had concluded.

(continued)

(continued)

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A-0568-05T4

October 16, 2008