State v. Ortiz

STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARLOS ORTIZ, Defendant-Appellant.

DOCKET NO. A-3952-18

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted January 12, 2021

February 26, 2021

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Haas, Mawla, and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 17-08-0438.

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

Angelo J. Onofri, Mercer County Prosecutor, attorney for respondent (Elizabeth M. Newton, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Carlos Ortiz appeals from a judgment of conviction entered after a jury found him guilty of murder, assault, theft, and related weapons offenses.

On appeal, defendant does not challenge the jury's finding that he fatally strangled the victim, Rufina Castro, his former girlfriend. His contentions are that the trial judge committed plain error when he failed to: 1) instruct the jury, sua sponte, on the lesser-included offense of passion/provocation manslaughter; 2) incorporate the self-defense jury charge into each individual count; and 3) preclude the admission of testimony in which Castro's son and daughter identified defendant as her killer. He also asserts that his sentence to a term of life imprisonment subject to an approximately sixty-four-year period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, was excessive. For the reasons that follow, we affirm in part, reverse defendant's murder conviction, and remand for proceedings consistent with this opinion.

I.

The evidence adduced at trial, upon which the jury relied, consisted of testimony from law enforcement officers, forensic experts, the victim's children, and defendant. The facts established by that evidence are summarized as follows.

Defendant killed Castro on August 16, 2016. Police arrested him the next day, and during an interview conducted in Spanish, which was later translated, defendant stated he lived with Castro and her son for approximately a year. He described Castro as having a drinking problem and acknowledged that he used drugs regularly during their relationship.

Defendant admitted that he killed Castro after an argument and that he "lost [his] mind at that moment." When describing the incident, defendant stated he picked Castro up from work and drank with her at their home. Defendant said they started arguing, which he said, "happened every day." While Castro was putting beer in the refrigerator in their bedroom, she "called [defendant] a motherfucker." Upset, defendant stated he hit Castro on the head with a "big" beer bottle causing it to shatter. Castro then "threw herself against" defendant, they "started to wrestle," and defendant "ended up hanging her" with a cell phone cord. Defendant said Castro grabbed him and "hurt[]" him while they wrestled, so he "had to fight with her, using the [phone] c[]ord until she let go of [him.]" By the time he let go, defendant stated Castro "had already asphyxiated."

Defendant hid Castro's body by covering it with clothes. As he "was covered in blood," defendant changed his clothes. Defendant then left to pick up Castro's son and lied to him that Castro would be working late. Defendantalso went to Castro's job and falsely stated to her manager that she would not be coming in to work because she was in the hospital.

Defendant then returned to the home, took approximately $1000 from Castro's purse, and drove to Newark to see his son from a previous relationship. Defendant told his son that he got into an argument with Castro and confessed that he killed her. His son rented a motel room for defendant where he was arrested the following morning after Castro's body was discovered.

On August 23, 2017, a grand jury charged defendant with: first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree possession of a weapon for an unlawful purpose (glass bottle), N.J.S.A. 2C:39-4(d) (count three); fourth-degree unlawful possession of a weapon (glass bottle), N.J.S.A. 2C:39-5(d) (count four); third-degree possession of a weapon for an unlawful purpose (cell phone charging cord), N.J.S.A. 2C:39-4(d) (count five); fourth-degree unlawful possession of a weapon (cell phone charging cord), N.J.S.A. 3C:39-5(d) (count six); and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a) (count seven).

At trial, defendant's counsel claimed Castro's death "wasn't murder" because defendant was "defending himself from an attack." Defendant'srecorded statement to the police was played for the jury and an officer that arrested defendant testified that he found alcohol, drugs, and Castro's jewelry and bank card in the motel room. Another officer who photographed defendant after his arrest testified that he only saw a few "faint scratch[s]" on his shoulder and neck.

A forensic scientist with the State Police testified that Castro's DNA was a "major contributor" of DNA found on defendant's shorts, a shard of glass, and the cell phone cord. A forensic pathologist stated that Castro's cause of death was "asphyxia due to compression of the neck" and explained that for asphyxiation to cause death it would take "minutes," not seconds. She noted that releasing pressure from strangulation immediately after loss of consciousness would result in the victim regaining consciousness. The pathologist also stated that Castro had several "skin scrapes and bruises" on her face, neck, left shoulder, left leg, back left arm, back right forearm, right lower back, and right ankle and "a laceration [that] was caused by a force" on the back of her head.

Castro's daughter also testified and identified defendant when asked if she "kn[e]w who murdered [her] mother." Castro's son testified similarly stating hebelieved defendant killed his mother. Castro's son also stated when defendant picked him up defendant told him that his mother was at work.

During trial, the parties discussed the proposed jury instructions. The court's initial draft, as circulated to the parties, included a passion/provocation manslaughter charge. The State objected, claiming the charge was not required based on defendant's statement to the police because "mere words are not sufficient provocation." The court reserved on finalizing the charge until the close of testimony so that it could "proceed accordingly based upon the applicable case law [as to] what comes in and what doesn't come in."

Defendant testified at trial. Contrary to the version of the incident he described in his recorded statement, defendant stated that Castro, not he, was the aggressor. He testified that he was kneeling down and putting beer in the refrigerator when Castro "began to say obscene words" that made him angry. Castro then started the physical altercation while he had his back to her by throwing a beer bottle at his direction causing the bottle to shatter. Defendant testified that Castro, who was heavier than him, "call[ed him] a son of a bitch" and then "jumped on top of [him]" while he was on his knees.

Defendant explained that he had a spinal injury in his lower back, which resulted in metal placements in his neck and the need to walk with a prostheticboot. He stated that Castro grabbed him by those metal "pieces" and "strangle[d him]." When he tried to stand up from his kneeling position, Castro was on his back and the two fell backwards. In the fall, Castro "hit her head on the window" and let go of defendant. According to defendant, Castro then grabbed three phone charging cords that she used to choke him.

In response, defendant stated he took a leather shoelace in the shape of a noose that he used to put on his prosthetic boot, "threw it back" around Castro's neck, and "[a]s [he] pulled[,] the noose tightened up." He stated that Castro then passed out, after which he unsuccessfully attempted to resuscitate her. When asked to explain the inconsistences between his trial testimony and his recorded statement, defendant testified he provided the initial version of the incident to the police to protect Castro's "good image of a mother" and so the incident would not come out in the media, causing her children to suffer from people that "don't understand the situation."

During the charge conference held on the record pursuant to Rule 1:8-7(b), the court indicated it removed the passion/provocation instruction from the jury charge because it found "the facts presented [do] not warrant[] such a charge." Defendant's counsel did not object to the final charge, instead, characterizing it as "satisfactory." In closing arguments, defendant's counselagain repeated defendant's theory of the case stating "August 16[] . . . wasn't murder. [Defendant] was acting in self[-]defense."

As to first degree murder, the court instructed the jury in part that "[i]f you determine that the State has proven beyond a reasonable doubt that the defendant purposely or knowingly caused death or serious bodily injury resulting in death[,] you must find the defendant guilty of murder." It also explained as to self-defense that:

The State has the burden to prove to you beyond a reasonable doubt that the defense of self[-]defense is untrue. . . .

. . . .

If the State does not satisfy this burden, . . . then it must be resolved in favor of the defendant and you must allow the claim of self[-]defense and acquit the defendant.

With regard to the jury charge for possession of the phone charging cord as a weapon for an unlawful purpose, the court instructed the jury that the State had the burden to prove those...