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State v. Cruz

October 16, 2008

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CARMELO CRUZ, A/K/A ISHMAEL SERRANO, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2008

Before Judges Wefing, Parker and Yannotti.

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. ...


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