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State v. Ramirez

Superior Court of New Jersey, Appellate Division

December 12, 2019

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
RAQUEL RAMIREZ, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JORGE OROZCO, Defendant-Appellant.

          Argued October 29, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 14-07-0599.

          Alyssa A. Aiello, Assistant Deputy Public Defender, argued the cause for appellant Raquel Ramirez (Joseph E. Krakora, Public Defender, attorney; Alyssa A. Aiello, of counsel and on the brief).

          Amira R. Scurato, Designated Counsel, argued the cause for appellant Jorge Orozco (Joseph E. Krakora, Public Defender, attorney; Amira R. Scurato, on the brief).

          Sarah C. Hunt, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Sarah Lichter, Deputy Attorney General, of counsel and on the briefs).

          Before Judges Messano, Vernoia and Susswein.

          OPINION

          MESSANO, P.J.A.D.

         Defendants Raquel Ramirez and Jorge Orozco were the parents of two-year-old, D.O. (Danielle), who died as a result of blunt force trauma to her head.[1] Both defendants were charged with Danielle's murder and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2), and were tried together by a jury. The jurors acquitted both defendants of murder, but found Orozco guilty of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) and (c), Ramirez guilty of the lesser-included offense of second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1) and (c), and both defendants guilty of endangering.

         The judge sentenced Orozco to a twenty-eight-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated manslaughter conviction, and a consecutive nine-year term with a fifty-four-month parole disqualifier on the endangering conviction. He sentenced Ramirez to an eight-year term of imprisonment on the manslaughter conviction, subject to NERA, and a consecutive eight-year term with a forty-eight-month parole disqualifier on the endangering conviction. These appeals, which we consolidated for purposes of issuing a single opinion, ensued.

Ramirez raises the following points for our consideration:
POINT I
THE ACCOMPLICE CHARGE FAILED TO
INSTRUCT THE JURY THAT RAMIREZ WAS NOT GUILTY OF RECKLESS MANSLAUGHTER BY OMISSION UNLESS IT WAS HER CONSCIOUS OBJECT TO FACILITATE OR PROMOTE THE ABUSE THAT RESULTED IN DEATH AND, INSTEAD, ERRONEOUSLY PERMITTED THE JURY TO CONVICT RAMIREZ IF SHE WAS (sic) MERELY "AWARE" OF THE ABUSE AND DID NOTHING TO STOP IT.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR MERGER. IN THE ALTERNATIVE, THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES.

         Orozco raises these points on appeal:

POINT I
THE TRIAL COURT ERRED IN FINDING DEFENDANT'SSTATEMENTS GIVEN TO POLICE WERE NOT IN VIOLATION OF HIS MIRANDA[2]RIGHTS.
POINT II
THE TRIAL JUDGE ERRED IN FAILING TO EXCLUDE THE DISCREDITED SCIENCE OF BITE MARK EVIDENCE. (Not Raised Below)
POINT III
THE TRIAL COURT ERRED IN FAILING TO SEVER THE TRIALS OF THE CO-DEFENDANTS DUE TO THE ANTAGONISTIC DEFENSES THAT DEVELOPED BETWEEN THEM DURING TRIAL. (Not Raised Below)
POINT IV
THE CONCEPTS OF PRINCIPAL VERSUS ACCOMPLICE LIABILITY WERE FLAWED BOTH IN THE JURY INSTRUCTIONS AND IN THE FAILURE TO SEVER, RESULTING IN COMPROMISING FACTS.
POINT V
SENTENCING ABNORMALITIES EXISTED INCLUDING THE FINDING OF AGGRAVATING FACTOR [TWO] AS WELL AS THE IMPOSITION OF A CONSECUTIVE SENTENCE.

         We begin consideration of these arguments by summarizing the trial evidence.

         I.

         On the day of her death, Sunday, February 2, 2014, Danielle was living with Orozco in an apartment near his mother, E.N. (Eva). Eva cared for Danielle on Mondays, Wednesdays and Fridays, from 6 a.m. to noon or 1 p.m., while Orozco was at work.[3] Eva testified that she last saw Danielle alive on the previous Friday, when she babysat, and that Danielle was fine, except for a faint bruise near her eye. Another witness, T.G., saw Danielle one week earlier, on January 24 and 25, and testified the child was healthy and appeared normal in every way.

         At about 8 p.m. on February 2, police were dispatched to Orozco's apartment in response to a 9-1-1 call made by Orozco's sister, who had been summoned to Eva's home and learned of Danielle's death. Both defendants were present in Orozco's apartment when police arrived. Danielle lay lifeless on the bed, with evidence that she had recently vomited. The child had numerous bruises and bite marks on her body, gashes on her lips, and other signs of injury. EMTs who responded were unable to revive Danielle, observed she was cold to the touch with signs of lividity, and concluded she was dead. The medical examiner (ME) arrived shortly before 11 p.m. He determined from the description of Danielle's body when EMTs arrived that she died at least four-to-six hours earlier, around 3 p.m.

         The autopsy revealed Danielle had suffered six cracked ribs, bruised lungs, tears to her kidney and spleen, diffuse bruising beneath her scalp, and hemorrhages on both sides of her brain. The ME found a total of four bite marks on her face, lower abdomen, back, and right arm; one mark was as fresh at four hours prior to death, and another was likely inflicted "when [Danielle] almost was dead or had just died." A forensic odontologist testified that the bite marks matched Orozco's dentition.

         The ME opined at trial that Danielle's head injury was not caused by a fall or from being shaken, and that it occurred "less than [twelve] hours" before she died. He explained that a person could suffer severe head trauma that was not instantly fatal, but rather could die after suffering a "re-bleed" because of the brain's compromised condition. During this time, vomiting, lethargy and trouble breathing are common.

         Police interviewed each defendant several times, and the redacted, video-recorded statements were played for the jury. Throughout, both attributed Danielle's injuries to falls, rough play, or uncorroborated physical defects in her feet and legs. Both also claimed that Danielle's stomach would swell when she ate, and that she had a history of vomiting after a meal. However, neither ever took Danielle to get medical treatment.

         As to the events of February 2, defendants' statements regarding the first half of the day were generally consistent. Both said they spent the morning together with Danielle at Orozco's apartment and that at mid-morning, Ramirez left Orozco alone with Danielle while she went to a laundromat. They gave shifting and confusing accounts about what occurred when Ramirez returned.

         Ramirez gave police statements on February 3 at 4:26 a.m., 9:37 a.m. and 7:19 p.m. During the first, she said that when she returned to Orozco's apartment, she bathed Danielle, and defendants took turns feeding the child. Soon thereafter, Orozco left the apartment to buy food. Ramirez noticed that Danielle appeared drowsy, and so she laid the child down to sleep on the sofa in the living room. Danielle was having difficulty breathing, began "snoring," and suddenly vomited profusely. The child abruptly stopped breathing and became "stiff."

         Because the sofa was covered in vomit, Ramirez took Danielle into the bedroom and changed her clothes. When police later asked about Danielle's soiled clothes, Ramirez said that Danielle was still undressed because she had just finished her bath. Once she realized that Danielle was dead, Ramirez became distraught, and, instead of calling police, she called Eva and Orozco at around 6:30 or 7 p.m. When she eventually got in touch with Orozco, he returned home, and they called for medical assistance.

         Ramirez admitted that while bathing Danielle, she noticed bruises on the child's body but claimed she did not know the cause. When police confronted Ramirez with pictures of the bite marks on Danielle's stomach, defendant said they resulted from her "kisses." In her second interview, Ramirez said the marks on Danielle's stomach were "suck marks," and the bruises were the results of falls. During her third interview, Ramirez claimed that she did not know the source of Danielle's injuries because she had just given birth to her new baby and was in the hospital.

         Orozco provided statements to investigators on February 3, February 4, and February 27. According to his first account, Orozco said he left the apartment around 12:30 p.m., after Ramirez returned from the laundromat. He went to his friend's home, called Ramirez for reasons that are unclear, but she did not answer, and he went to store to pick up food, before returning around 6:20 p.m. He found Danielle alone in the apartment. Her body appeared to have been "thrown" on the bed, and she had no pulse. Orozco tried administering CPR, but he could not revive her and went to Eva's home where he found Ramirez. When his sister arrived, they called 9-1-1.

         He told police that Danielle had bruises on her body and face because she frequently fell and suggested that the bruises on her stomach were from his attempts to administer CPR. During his second interview, Orozco admitted that he would sometimes "tap" Danielle on the back of her head to get her attention, and that he "sucked" on her cheek. He bathed Danielle daily, but never noticed any of the injuries on Danielle's body.

         Orozco provided contradictory answers regarding his communications with Ramirez on the day Danielle died. For example, in one interview, he told police that he left at around 12:30 p.m. to get food, but in another he said that he left at around 2:30 p.m. Phone records showed that beginning at 2:57 p.m., Ramirez called Orozco multiple times within a five-to-six-minute span, culminating in a forty-minute conversation between the two beginning at 3:05 p.m.

         Neither defendant testified nor produced any witnesses.

         In summation, Orozco's counsel argued that Danielle died while in Ramirez's custody alone, and that Ramirez failed to call 9-1-1. He noted that Ramirez was arrested shortly after providing a statement to police, but that Orozco voluntarily presented himself for police questioning the next day, demonstrating he had nothing to do with the child's death. Counsel downplayed the presence of bite marks on Danielle's body, ...


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