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NOT FOR PUBLICATION WITHOUT THE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-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARMELO CRUZ, a/k/a

ISHMAEL S. POLANCO,

a/k/a ISHMAEL SERRANO,

Defendant-Appellant.

_______________________________________

October 3, 2014

Submitted September 16, 2014 Decided

Before Judges Yannotti and Hoffman.

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

Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

Appellant filed pro se supplemental briefs.

PER CURIAM

Defendant Carmelo Cruz was charged under Middlesex County Indictment No. 02-11-1359 with murder, N.J.S.A. 2C:11-3(a)(1)-3(a)(2) (count one); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts two and three); hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1),-3(b)(4) (counts four and five); and fabrication of physical evidence, N.J.S.A. 2C:28-6(2) (count six). Defendant was tried before a jury, which found him guilty on all counts.

Defendant appealed and we affirmed the convictions on counts two through five, but reversed the conviction on count one and remanded the matter for a new trial on that count. State v. Cruz, No. A-0568-05 (App. Div. Oct. 16, 2008) (slip op. at 1). Defendant was inadvertently re-tried on all charges, and again found guilty on all counts. Defendant appeals from the judgment of conviction entered on November 12, 2010. We affirm.

I.

We briefly summarize the salient facts, drawn from the record of defendant's second trial. On Friday, September 6, 2002, defendant was residing in an apartment with his wife, Refugia Ruiz-Olmedo (Ruiz-Olmedo), and her three children, A.C.R., L.C.R., and C.C.R. Around midnight, L.C.R. returned to the apartment to get some money, and went next door to his cousin's house. He returned home at 5:00 a.m. on Saturday morning and went to sleep.

L.C.R. awoke around 10:00 a.m. A.C.R. and C.C.R. were at home. L.C.R. observed defendant mopping the floor with bleach and "something else that makes the floor shiny." L.C.R. thought this was unusual because normally, defendant would not clean the house on his own. Ruiz-Olmedo was not at home at the time. L.C.R. thought she was working. L.C.R. left the apartment. He went downtown and returned home around midnight.

L.C.R. awoke on Sunday morning. Defendant asked him whether he had seen his mother. Defendant said she had been missing since Friday night. Defendant and L.C.R. went to the police station with A.C.R. and C.C.R. They reported that Ruiz-Olmedo was missing.

Later that day, defendant showed L.C.R. an envelope he said he had found in the car, and asked L.C.R. if he had ever seen it. L.C.R. replied, "No." Defendant opened the envelope and told L.C.R. that it indicated where Ruiz-Olmedo could be found. L.C.R. thought the handwriting on the envelope was similar to defendant's handwriting.

Defendant showed L.C.R. a map which defendant said he had found in the car, and told L.C.R. he wanted to find Ruiz-Olmedo. They got into the car and drove on Route 130 to North Brunswick, where they stopped and informed the police that Ruiz-Olmedo was missing. Defendant showed the police officers the map. He told them that he had previously filed a missing persons report, and the officers said that everything would be "okay."

Defendant and L.C.R. got back in the car and drove south on Route 130. Defendant stopped the car near a wooded area and started to walk into the woods. L.C.R. followed. According to L.C.R., defendant paused for a moment and began to cry. He said he was "going to get the gangsters." Defendant walked to a bag covered in leaves and told L.C.R "that's your mom."

L.C.R. said he did not believe his mother was there. Defendant said L.C.R. should open the bag but he refused. L.C.R. told defendant to open the bag but he kept quiet. They left, stopped at a laundromat to pick up A.C.R., and returned home. Defendant showed the map to A.C.R. She told defendant "that's your handwriting."

Defendant informed A.C.R. that her mother was at the location indicated on the map. She started to cry and called the police. They arrived at the apartment, and defendant said he would take them to Ruiz-Olmedo. They drove to the wooded area, where defendant led the officers into the woods and pointed out the bag which contained Ruiz-Olmedo's body. Defendant was taken to a police station, and informed of his Miranda rights.1 He agreed to provide a statement.

In his statement, defendant said he returned home sometime after midnight on Saturday, September 7, 2002. Ruiz-Olmedo was in the apartment, lying down. She told him that she had been drinking beer because she was in love with another man. She stated that, in the United States, women are free, and she could do as she pleased.

Defendant understood that Ruiz-Olmedo was having an affair with another man. She told him that other men performed better sexually than he did. Defendant turned off the lights, laid down on the bed, and went to sleep. C.C.R. was asleep in a separate bed in the same bedroom that defendant and Ruiz-Olemdo shared. He was asleep.

Defendant said he awoke to find Ruiz-Olmedo placing a cord on his neck. He pushed her away. Ruiz-Olmedo fell from the bed to the floor and the cord became tangled on her body and around her neck. She was choking. Defendant said he grabbed the cord with his hands and pulled on it. Eventually, Ruiz-Olmedo stopped choking and she stopped moving. He stated that when Ruiz-Olmedo fell to the floor, he twice banged her head hard on the floor.

Defendant left the bedroom and found two black plastic bags. Defendant described the bags as the "tough ones" that are used for garbage. He placed Ruiz-Olmedo's body in the bags. Defendant took the body out of the house, put it into the car, and drove on Route 130 to a wooded area, where he placed the bag in the woods and covered it with leaves.

The body was eventually examined by Dr. Frederick DiCarlo of the Middlesex County Medical Examiner's Office. He testified that the cause of Ruiz-Olmedo's death was ligature strangulation and blunt force trauma to the head. According to Dr. DiCarlo, Ruiz-Olmedo had been strangled for several minutes, and had received a minimum of five forceful impacts to the head, before she died.

At trial, defendant once again described his struggle with Ruiz-Olmedo. This time, defendant stated that he "did not see her." Instead, he saw a "bulk" that was holding a cord over him. He punched the bulk in the head four or five times while it held the cord against his neck. He stated that the bulk fell while the cord was wrapped around his hand and feet, and that he fell with it as a result.

While on the floor, defendant grabbed the bulk by the shoulders and slammed it three or four times hard. According to defendant,

Then I got up and I heard noise, someone going down the stairs, because when I was struggling somebody was tying up my feet with the rope. Somebody else was there. When somebody ran down the stairs. I went outside right away to try to catch them to see who it was. I opened the door, went out in the hall. There were three three men running, guys.

Defendant stated that the men got into a two-door red car and fled before he could catch them. According to defendant, he did not mention the men to the police because he wanted revenge.

Defendant testified that he walked upstairs, returned to his room, turned on the light, and only then saw that it was his wife on the floor. Defendant stated that he knelt down, grabbed his head and said "oh, my God, what happened here in my house, my wife attacked me and now she's dead."

As we noted previously, in the second trial the jury found defendant guilty on all counts. This appeal followed.

In the brief filed by counsel, defendant argues

POINT I

THE JURY INSTRUCTION ON SELF-DEFENSE WAS WOEFULLY INADEQUATE AND THUS THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, 1, 9, 10. (Not Raised Below)

POINT II

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. ART. I, 1, 9 AND 10. (Not Raised Below)

POINT III

THE DEFENDANT'S SENTENCE WAS EXCESSIVE AS NO JUSTIFICATION EXISTED FOR CONSECUTIVFE SENTENCES

Defendant has filed a pro se brief in which he raises the following arguments

POINT I

JUSTIFIABLE HOMICIDE (Not raised below)

POINT II

FALSE IMPRISONMENT (Not raised below)

A. The court committed a fatal error by broadening the scope of the indictment, and adding [an] additional element not presented in the original indictment, which [violated] the defendant's [rights under the] fifth, sixth and fourteenth U.S.C.A. Constitution amendments.

POINT III

APPELLANT CHALLENGES THE SENTENCE, AGGRAVATING FACTORS IMPOSED, CONVICTION MUST BE VACATED FOR LACK OF PROOF OF AGGRAVATING CIRCUMSTANCES, RESULTING FROM FALSE DETENTION INFERING [SIC] TO A FALSE IMPRISONMENT (Not raised below).

POINT IV

TRIAL COUNSEL[] INEFFECTIVELY REPRESENTED DEFENDANT (Not raised below)

Defendant has also filed a supplemental pro se brief and argues

POINT I

THE APPELLATE DIVISION, DOCKET NO. A-0568-05T4 HAS ALREADY CONCLUDED THAT THE JURY REACHED A RESULT THAT IT MIGHT NOT OTHERWISE HAVE REACHED HAD IT BEEN CORRECTLY CHARGED ON SELF DEFENSE THE STATE'S BRIEF ANSWER TO POINT I, TO APPELLANT'S PLENARY BRIEF IS MOOTED BY THESE FACTS (Raised below)

POINT II

THE APPELLATE DIVISION DID NOT ADDRESS APPELLANT[']S POINT IV IN DOCKET NO. A-0568-05T4 HEREBY RE ADDRESSED AS POINT II ON INSTANT CASE. APPELLANT ADOPTS BY REFERENCE [TO] THE BRIEFS FILED IN THIS ISSUE TO SETTLE THE RECORD ON THIS MATTER IN REPLY TO THE STATE[']S ANSWER (Raised below)

POINT III

NO CONSENT WAS GIVEN BY DEFENDANT FOR INSTANT IMPOSITION OF SENTENCE. SENTENCE IS IN EXCESS OF THE SENTENCE AUTHORIZED BY LAW, AS IT WAS A GRAVES ACT CASE, CONVICTION WHICH IS AN EXPIRED SENTENCE, CAUSING FALSE IMPRISONMENT, BY DEPRIVATION OF RIGHTS PROVIDED BY U.S. CONST. AMEND VIII, XIV; N.J. CONST. ART. I, PAR. 1, 12 (Not raised below)

A. Appellant contends that he gave no "Consent" to be Sentenced to instant sentence. The Imposition of a Statutory Maximum was not based on fact found by the Jury and No Motion for Extended Term was filed By the State, not disclosure of the "Text" incorporated by the court to justify the sentence. This is a clear Mistake of facts and for the Sentence a Mistake of Law.

B. Appellant adopts by reference Point III, from appellant Pro se supplemental Brief

C. No Hearing was Held on defendants Ability to pay fines and Penalties

II.

Defendant argues that the trial judge's instructions to the jury on self-defense were erroneous and deprived him of his right to due process and a fair trial. We disagree.

Here, the trial judge instructed the jury that defendant was presumed to be innocent and could not be found guilty unless the State had proven "each and every" element of an offense beyond a reasonable doubt. The judge emphasized that the State had the burden of proof and that a burden "never shifts." The judge noted that the defendant in a criminal case does not have a duty or responsibility to offer proof relating to his innocence "whatsoever."

The judge stated that defendant had been charged with murder, and he explained the elements of that offense which the State had to prove. The judge also instructed the jury on passion/provocation manslaughter, and on aggravated and reckless manslaughter. The judge then instructed the jury on self-defense.

The judge discussed the self-defense statute, pointing out that the statute provides that "[t]he use of force upon or toward another 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." The judge stated that the use of "deadly force" is permissible "when that force is necessary to prevent the use of force against him."

The judge added, however, that "[i]f the use of force by the defendant was not immediately necessary for the defendant's protection or if the force used by the defendant was disproportionate in its intensity, then the use of such force by the defendant was not justified and the self-defense claim fails."

The judge then discussed the "different levels of force that a person may use to protect himself," and pointed out that "[i]f defendant is attempting to protect himself against exposure to death or substantial danger of serious bodily harm, he may resort to the use of deadly force, otherwise, he may only resort to non-deadly force." The judge stated that the jury

must determine first whether defendant used deadly force. If you find that the defendant did so, then you must determine if the defendant reasonably believed that he had to use deadly force to defend against the unlawful conduct of another. A reasonable belief . . . is one which would be held by a person of ordinary prudence and intelligence situated as this defendant was.

The judge also told the jury that "[s]elf-defense exonerates a person who uses force in the reasonable belief that such action was necessary to prevent his or her death or serious injury." The judge noted, however, that "an exception to this rule exists," and he explained the doctrine of retreat. After describing the doctrine, the judge stated that "the person need not retreat from . . . his or her own home, dwelling, including the porch, unless he or she was the initial aggressor."

Defendant argues that the judge's instructions on self-defense were hopelessly muddled. He contends that the judge erred by discussing the duty of retreat when there was no such duty in this case. He contends that there was no need for the judge to mention "a porch" in his discussion of retreat.

Defendant further argues that the judge failed to relate self-defense to the murder instructions, thereby allowing the jury to find him guilty of that offense if the State proved the statutory elements of murder, without making it clear that the absence of self-defense was necessary for conviction. At trial, defendant did not object to the instructions.

"'[A]ppropriate and proper charges to a jury are essential for a fair trial.'" State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 (1981)). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)).

In the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[Id. at 341 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

An "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a 'poor candidate[] for rehabilitation' under the plain error theory." Id. at 341 (quoting Jordan, supra, 147 N.J. at 422) (alteration in original) (emphasis added).

Nevertheless, any such error is to be considered "in light of 'the totality of the entire charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). And "any alleged error also must be evaluated in light 'of the overall strength of the State's case.'" Ibid.

Here, the charge on self-defense was clear. The judge indicated when the duty of retreat applied and when it did not apply. If the jury found, based on the evidence presented, that there was no duty to retreat under the circumstances of this case, it could readily disregard that section of the instructions.

Furthermore, the judge's placement of the self-defense charge after his discussion of the substantive offenses was not misleading, and self-defense was sufficiently related to the murder charge. The instructions on self-defense followed the judge's discussion of murder and the lesser-included offenses pertaining to that charge. Viewed in their entirety, the instructions made clear that self-defense applied to all of the murder-related offenses the judge had discussed.

Moreover, in the charge conference, the judge stated that his instructions on self-defense would come after his discussion of the substantive offenses. Defendant's attorney stated that he would leave that up to the court's discretion. Counsel apparently thought the charge was not erroneous or prejudicial to the defense.

We conclude that the judge's instructions on self-defense were not erroneous.

III.

Next, defendant argues that he was denied due process and a fair trial because the assistant prosecutor mentioned in summation that he uses two names and, by doing so, implied that he was not a truthful person. Again, we disagree.

In his statement to the police, defendant said his name was Ismael Serrano-Polanco" or "I.S.P. He referred to Ruiz-Olmedo as his wife or girlfriend, and stated that the three children with whom he resided were Ruiz-Olmedo's children. According to defendant, the children's father was in Mexico. However, at trial, defendant testified on direct examination that Ruiz-Olmedo was his wife, and that they had three children. Defendant also testified that, when he started his job at a soap factory in 1995, he used the named Ismael Serrano, which he had purchased "on the street."

Defendant said he did not use his "real name" because he "had no papers" and wanted to buy a car so he could take his children to school. On cross-examination, defendant acknowledged that in his statement to the police, he did not tell the truth about his real name, his birthdate, his relationship with Ruiz-Olmedo or his relationship to the children.

In summation, the assistant prosecutor stated that defendant wanted the jurors to believe his version of the incident, "just as he attempted to deceive law enforcement as to his name." The assistant prosecutor also said the statement defendant gave to the police shows "deceptions." The prosecutor said, "From the outset of this statement he tells the investigator that his name is Ismael Serrano-Polanco, that the victim is not his wife, [and] the children are not his. He does all this to continue to deceive the police."

The principal objection to the use of an alias in a criminal proceeding is that an alias implies that the defendant belongs to the criminal class and thereby prejudices the jury." State v. Salaam, 225 N.J. Super. 66, 73 (App. Div.) (citations omitted), certif. denied, 111 N.J. 609 (1988). [T]he admission of irrelevant aliases into evidence will not afford a basis for reversal unless some tangible form of prejudice is demonstrated, i.e., where such names have been intentionally offered as indicia of guilt. Ibid. (emphasis added).

Here, defendant's use of two names was relevant to the issue of his credibility. Moreover, the assistant prosecutor did not refer to defendant's different names to infer that he was part of the criminal class, and did not intentionally mention the use of different names as indicia of guilt. Furthermore, the assistant prosecutor's remarks were reasonably related to the evidence presented at trial. State v. Frost, 158 N.J. 76, 82 (1999) (citations omitted). In addition, defense counsel never objected to the remarks, thereby indicating that counsel did not view them as prejudicial. Id. at 83-84 (citing State v. Ramseur, 106 N.J. 123, 323 (1987)).

We conclude that the assistant prosecutor's remarks regarding defendant's names were not improper.

IV.

Defendant further argues that his sentences are excessive. We do not agree.

As we noted previously, in the first trial, defendant was convicted on all counts. We reversed defendant's murder conviction, but otherwise affirmed the jury's verdict in the first trial. Cruz, supra, (slip op. at 23-24). On remand, defendant was erroneously re-tried on all counts, but nevertheless was again found guilty of all charges.

Following the second trial, the judge sentenced defendant to thirty-five years for the murder, with a thirty-year period of parole ineligibility. In addition, the judge imposed the same sentences that another judge had imposed following the first trial.

The first trial judge merged counts two and three, charging possession of weapons for an unlawful purpose, with count one. On count four, charging hindering apprehension or prosecution, the judge imposed a four-year term, consecutive to count one.

In addition, on count five, which also charged hindering apprehension or prosecution, the judge imposed another four-year term, concurrent with count four and also consecutive to count one. A one-year concurrent term was imposed on count six, charging fabrication of physical evidence.

Defendant contends consecutive sentences should not have been imposed on counts four and five. He maintains that an aggregate sentence of thirty-nine years for a "very serious" but "short period of aberrant behavior" is excessive. He claims he killed his wife in a struggle in a dark bedroom, and thereafter panicked. He says he should have been given "credit" for leading the police to the body, which otherwise might not have been discovered.

In our view, these contentions are without sufficient merit to warrant discussion. R. 2:11-3(e)(2). We note, however, that imposition of consecutive sentences in this case was consistent with the principles enunciated in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed 2d, 308 (1986). The offenses of hindering apprehension or prosecution were independent of the murder. Id. at 644. Moreover, as indicated in Yarbough, there can be no free crimes in a system for which the punishment shall fit the crime. Id. at 643.

We conclude that defendant's sentences are not an abuse of the court's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

V.

We have considered the arguments defendant has presented in his pro se briefs, including defendant's claim that he was denied the effective assistance of trial counsel. We find these arguments to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).