October 29, 2019
appeal from the Superior Court of New Jersey, Law Division,
Union County, Indictment No. 14-07-0599.
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
R. Scurato, Designated Counsel, argued the cause for
appellant Jorge Orozco (Joseph E. Krakora, Public Defender,
attorney; Amira R. Scurato, on the brief).
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
Judges Messano, Vernoia and Susswein.
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. 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
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:
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.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION
FOR MERGER. IN THE ALTERNATIVE, THE TRIAL COURT ERRED IN
IMPOSING CONSECUTIVE SENTENCES.
raises these points on appeal:
THE TRIAL COURT ERRED IN FINDING DEFENDANT'SSTATEMENTS
GIVEN TO POLICE WERE NOT IN VIOLATION OF HIS
THE TRIAL JUDGE ERRED IN FAILING TO EXCLUDE THE DISCREDITED
SCIENCE OF BITE MARK EVIDENCE. (Not Raised Below)
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)
THE CONCEPTS OF PRINCIPAL VERSUS ACCOMPLICE LIABILITY WERE
FLAWED BOTH IN THE JURY INSTRUCTIONS AND IN THE FAILURE TO
SEVER, RESULTING IN COMPROMISING FACTS.
SENTENCING ABNORMALITIES EXISTED INCLUDING THE FINDING OF
AGGRAVATING FACTOR [TWO] AS WELL AS THE IMPOSITION OF A
begin consideration of these arguments by summarizing 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. 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.
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.
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.
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.
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
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.
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
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.
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.
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
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.
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.
defendant testified nor produced any witnesses.
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, ...