STATE OF NEW JERSEY VS. RAFAEL J. OLMO (15-06-1444, ATLANTIC COUNTY AND STATEWIDE) ( 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NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1999-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAFAEL J. OLMO,
a/k/a RICKY OLMO,
Defendant-Appellant.
_______________________
Argued September 16, 2021 – Decided October 8, 2021
Before Judges Alvarez, Haas, and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 15-06-1444.
Zachary G. Markarian, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Zachary G.
Markarian, of counsel and on the brief).
John J. Santoliquido, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Cary Shill, Acting Atlantic County
Prosecutor, attorney; John J. Santoliquido, of counsel
and on the brief).
PER CURIAM
Convicted by a jury, defendant Rafael J. Olmo was sentenced to
substantial terms on November 2, 2018. Defendant waived his appearance
during the trial and his sentence hearing; at the time, he was imprisoned for
murder. Defendant appeals, and because the trial judge did not sufficiently
address his motion for leave to represent himself, we reverse and remand.
The jury found defendant guilty of the following: third-degree possession
of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count
one); first-degree drug distribution, N.J.S.A. 2C:35-5(b)(1) (count two); third-
degree drug possession (count three); second-degree possession with intent to
distribute counterfeit CDS, N.J.S.A. 2C:35-5(a)(2) (count four); second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count eight); second-
degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39 -4(a)
(count nine); third-degree possession of CDS (count twelve); second-degree
drug distribution (count thirteen); second-degree drug distribution (count
fourteen); first-degree drug distribution (count fifteen); third-degree witness
tampering, N.J.S.A. 2C:28-5(a)(1) (count sixteen); and third-degree certain
persons not to possess weapons, N.J.S.A. 2C:39-7 (count seventeen). The jury
was unable to reach a verdict on first-degree robbery, N.J.S.A. 2C:15-1 (count
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five); first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count six); first-degree
felony murder, N.J.S.A. 2C:11-3(a)(3) (count seven); fourth-degree possession
of hollow point ammunition, N.J.S.A. 2C:39-3(f) (count ten), and first-degree
possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b)(1) (count
eleven). The State intended to retry those counts.
The judge imposed an aggregate of 116 years in state prison on defendant,
subject to forty-seven-and-a-half years of parole ineligibility, which included
mandatory extended terms and mandatory consecutive terms. Defendant's 116-
year sentence was consecutive to the sentence of life without parole he was
already serving. The facts relevant to the charges are not relevant to our decision
and thus will not be repeated here.
Defendant had several indictments pending when this matter was tried. At
various times, he was represented by three private attorneys and a public
defender.
Defendant's difficulties with his attorneys regarding a different indictment
are reflected in the record provided on this appeal. On May 16, 201 4, for
example, while discussing scheduling for another case, defendant accused the
court of "fir[ing]" his prior attorney. On that date, counsel stated defendant
wanted his oldest case tried first. The State wished to proceed out of
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chronological order. Defendant addressed the judge directly, asserting that he
had the right to be tried on the oldest indictment first and that he would have
benefitted from the 2009 case being heard before the murder case. Defendant
remarked that "because we didn't [try the 2009 case first] a lot of 404 and 403
stuff came in which prejudiced my case, and I feel as though I was violated all
the way through and I never got a fair trial."
On April 15, 2016, the court heard argument on various pretrial motions
on another indictment. During that proceeding, defendant sought to represent
himself on all pending charges. During the Crisafi/Reddish1 colloquy, the judge
elicited from defendant that he had been expelled from school in the ninth grade,
obtained a GED at age sixteen, had no learning disabilities, and had been "less
than honorably" discharged from the Army after a year and a half. While on
parole, he worked as a barista for about a year.
Defendant told the judge he had started to read "a little bit" of the Court
Rules and the Rules of Evidence. He could not recall whether he was convicted
of the murder, for which he was serving life without parole, in 2012, 2013, or
2014. Defendant could name neither the charges pending against him nor their
elements. He repeatedly responded to the judge's questions by saying he could
1
State v. Crisafi, 128 N.J. 499 (1992); State v. Reddish, 181 N.J. 553 (2004).
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answer if he had the indictments in front of him—but could not "off the top of
[his] head." Defendant lacked awareness of his potential defenses, the potential
sentences he faced, and the witnesses he might call in his defense. He argued
that he did not know what motions he would file because he did not have the
relevant discovery materials. Defendant claimed the "[f]eds" took the discovery
during his 2010 arrest. He did not know how to file a motion and admitted he
would have to "look in the book" to learn how.
Defendant understood that in questioning a witness or making an opening
or closing statement, he could tip the jury off that he knew more than he should
about the charges, creating "an inference that [he] committed [the crimes] . . . ."
He also claimed he understood that if he "cross[ed] the line between acting as
an attorney and acting as a witness[,]" he might "forfeit [his] right to remain
silent . . . ." Defendant said he knew that by representing himself he would lose
the right to raise any ineffective assistance of counsel claims. The exchange
ended as follows:
[THE COURT:] All right. Do you understand
that your lack of knowledge of the law may, and
probably will, impair your ability to defend yourself,
and that your dual role, as counsel and accused, may
hamper your effectiveness in presenting your defense.
Do you understand that?
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[Defendant:] Yes.
[THE COURT:] I must advise you that a trained
lawyer would be far better to defend you than you can
do yourself, and I strongly urge you not to try to defend
yourself without a lawyer.
Have you had enough time to think about
this?
[Defendant:] Yes.
[THE COURT:] Is it still your desire to defend
yourself?
[Defendant:] Yes.
[THE COURT:] Are you making your decision
voluntarily and of your own free will?
[Defendant:] Yes.
[THE COURT:] Do you have any questions for
me?
[Defendant:] Not right now.
[THE COURT:] Not right now?
[Defendant:] No.
The judge ultimately found:
All right. I'm going to save you some time,
because this [c]ourt is going to make the finding right
now that you are not competent to represent yourself,
and I am going to deny your application to represent
yourself.
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First of all, you have a limited [–] and these are
things I am putting on the record for any type of review
going forward. You have a limited education. You
have not progressed beyond the [ninth] grade. You
have a GED. You are clearly not ready for trial in this
matter. What you said to the [c]ourt over and over is
that, I could look it up in a book. I don't know this off
the top of my head.
This is a significant trial, both the possession of
a weapon trial and also, the other trials, the other
indictments against you are all significant. Now,
granted you are already faced [–] you are already
sentenced and facing a life sentence for the murder for
which you were tried and convicted. And I . . . can just
see by your cavalier attitude that you have been in front
of this [c]ourt time and time again, that somehow or
other that you can think this is a day out of State Prison,
and you can come in here with a smirk on your face and
just say to the [c]ourt, well, I'm not ready. I don't want
to do this; I don't want to do that.
But, be that as it may, you can smirk as much as
you want, but the fact of the matter is that, I have to
make sure there is a level playing field here, and I don't
believe that with your experience [–] you've never
observed [–] you, yourself, were tried and convicted for
murder. You had a very competent attorney . . . .
You've never observed any other trials. You've never
had job training, other than as a [b]arista and in the
[m]ilitary, and apparently, you lasted a year and a half
in the [m]ilitary, and you were discharged, less than
honorably [–] other than honorable.
You don't have a history of having responsible
jobs at which you had to perform at a responsible level,
and you had the training. You do [not] know what you
are charged with. You can't recount the counts of the
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indictment. Generally, you said you'd have to read
them.
You don't know, after six years, the type of
sentence that you might face, if you were convicted of
this. You say you know the concept of lesser-included
offenses, but you don't know what they might be in this
particular case. The one thing that you did know is that
the [p]rosecutor's burden of proof is beyond a
reasonable doubt. I suspect [counsel] said that over and
over again in the trial that you were subject to.
You know that there is a book with the Rules of
Evidence, but you have no familiarity with the Rules of
Evidence. You seem to understand that the [j]udge
can't explain those to you and no one can help you. But
there is one thing in saying that you understand that and
another thing of abiding by it.
You say you understand that by electing to
proceed, you're on your own, that no one can help you
with your questions or presenting evidence. You don't
know the [r]ules of [c]riminal [p]rocedure. Again, you
say you don't know of them off the top of your head.
You know where the book is. You don't really know
who you want to subpoena as witnesses in this
relatively simple case, possession of a weapon;
possession of a weapon for unlawful purpose; certain
persons not to have weapons.
I can't even imagine the number of people that
might be necessary to subpoena in the other cases that
[a second counsel] is representing you. You don't know
how to subpoena witnesses. You haven't expressed
that. You said, well, I can look it up. After six years,
perhaps, that should be something you are familiar
with.
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You say, you probably are going to pursue
motions but you don't know what they are. You don't
understand how to file motions. You don't know that
there are restrictions on what you can say in closing or
opening. You don't know that there are restrictions on
the way that you can ask questions. You don't know
how you are going to testify, if you elect to do so.
You know that you have a right to remain silent,
but if you become . . . your own lawyer, essentially, that
right to remain silent is . . . very much impaired. And
you seem to understand that in becoming your own
attorney, you may impair your . . . ability to defend
yourself, but I . . . just think you're . . . saying what you
think you need to say to me, so that I will say that you
can represent yourself. You are . . . nowhere near being
qualified to represent yourself.
And for those reasons, I am going to deny your
motion. I will tell you, as well, you may save the paper
you are going to file with respect to [the other
attorney's] cases, because my results in that will be the
same. You're going to be represented by counsel. I am
going to direct that [–] now, . . . you have two
opportunities here, now, that I said that you are not
going to represent yourself.
[(Emphasis added).]
Some seventeen months later, on September 15, 2017, the court heard
various pretrial motions related to this indictment. When counsel reminded the
court defendant had filed a pro se motion to proceed pro se, which needed to be
heard, the judge said:
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I've already addressed that issue. In prior matters,
we've addressed the issue that [defendant] is not going
to be permitted to represent himself. So his motion is
–
Does [defendant] have a problem? He keeps
hopping up and talking to you.
[Defendant]: Do you want me to speak to
her?
THE COURT: No, I don't.
[Defendant]: All right.
THE COURT: I want your attorney to speak.
That's why you have an attorney.
[Defense counsel]: What [defendant] is
indicating is that Your Honor did not make that finding
on the super[s]eding indictment. [2] I wasn't here, Judge,
so I –
THE COURT: It's the same thing. The reason
he – the reason – the reasoning for not permitting him
to, to go pro se on the other matters wouldn't matter if
there's a super[s]eding indictment. So I just have to
make it clear on the record that my finding with respect
to the previous indictment applies to this indictment as
well. I'm doing that right now. [Defendant] will not be
permitted to proceed pro se. All right? And he can take
that up to the Appellate Division if he wants to do so.
After that ruling, the judge ruled on the other pending pre-trial applications.
2
Defendant was tried and now appeals under the superseding indictment.
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On appeal, defendant raises the following points:
POINT I
THE DENIAL OF [DEFENDANT'S] MOTION TO
PROCEED PRO SE VIOLATED HIS
CONSTITUTIONAL RIGHT TO SELF-
REPRESENTATION BECAUSE HIS REQUEST
WAS BOTH KNOWING AND VOLUNTARY.
A. The Court Erred in Basing Its Decision Denying
[Defendant] the Right to Represent Himself On His
Lack of Technical Legal Knowledge Regarding the
Charges in a Separate Indictment.
B. The Court Erred in Summarily Applying Its
Incorrect, Seventeen-Month-Old Ruling From a
Separate Indictment to Conclude That [Defendant]
Could Not Represent Himself in This Case.
POINT II
THE COURT FAILED TO INSTRUCT THE JURY
THAT GONZALEZ'S TESTIMONY SHE HAD SEEN
[DEFENDANT] POSSESS GUNS AND DRUGS ON
UNSPECIFIED DATES IN THE PAST COULD NOT
BE USED AS PROPENSITY EVIDENCE TO
SUPPORT THE CONCLUSION THAT HE HAD
DONE SO ON THE SPECIFIC DATES CHARGED.
POINT III
[DEFENDANT'S] CONVICTIONS FOR COUNTS
EIGHT AND NINE MUST BE REVERSED
BECAUSE THE COURT FAILED TO INSTRUCT
THE JURY THAT IT HAD TO FIND THAT
[DEFENDANT] HAD POSSESSED A WEAPON ON
DECEMBER 1, 20[10].
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POINT IV
THE COURT SET AN EXCESSIVE SENTENCE BY
IMPERMISSIBLY SENTENCING [DEFENDANT]
TO MULTIPLE MANDATORY EXTENDED TERM
SENTENCES, RUNNING THEM CONSECUTIVE,
AND DOUBLE-COUNTING HIS PRIOR RECORD
IN AGGRAVATION.
We address only defendant's first claim of error, as this decision makes
the others moot.
Both the United States and New Jersey Supreme Courts have long held
"the United States Constitution and our New Jersey Constitution grant
defendants charged with a criminal offense the right to have the assistance of
counsel." State v. King, 210 N.J. 2, 16 (2012) (citing U.S. Const. amend. VI;
N.J. Const. art. I, ¶ 10). "The corollary to the right of a criminal defendant to
be represented by an attorney is the defendant's right to represent himself." Ibid.(citing Faretta v. California, 422 U.S. 806, 814 (1975)). "The right [of self-
representation] is either respected or denied; its deprivation cannot be harmless."
Id. at 22 (alteration in original) (quoting McKaskle v. Wiggins, 465 U.S. 168,
177 n.8 (1984)). "Defendant may have been represented by a skilled atto rney,
the evidence against him may have been substantial, and the verdict may find
strong support in the record; that matters not." Ibid. (citing State v. Thomas,
362 N.J. Super. 229, 244 (App. Div. 2003)).
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Our Supreme Court recently reiterated that the purpose of a
Crisafi/Reddish colloquy is to ascertain whether a defendant is knowingly and
voluntarily waiving the right to counsel, not to assess his or her familiarity with
substantive law. State v. Outland, 245 N.J. 494, 497 (2021). The Court
continued: "the goal of the colloquy is not to ascertain whether a defendant
possesses technical legal knowledge." Id. at 506 (citing Faretta, 422 U.S. at
835-36). We review a trial judge's decision regarding self-representation for
abuse of discretion. See State v. DuBois, 189 N.J. 454, 475 (2007).
Here, the initial colloquy appears too focused on defendant's technical
knowledge. Most problematic, however, is the court's later failure to engage in
a fresh Crisafi/Reddish colloquy before trial on the indictment under appeal.
The court should not have merely referenced the April 15, 2016 decision.
Setting aside the judge's concern on that date, that defendant lacked knowledge
regarding the offenses and potential sentences, the judge should have revisited
the issue seventeen months later, on September 15, 2017. Defendant's answers
could well have been different, and he might have since displayed the minimal
technical knowledge about his charges that might have convinced the judge he
was knowledgeable enough to represent himself.
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The judge should have inquired again, not because of the superseding
indictment, but because the incarcerated defendant had ample time and
opportunity in the intervening months to familiarize himself with his charges,
his possible strategies, and legal procedure. A second colloquy may well have
produced a different outcome. Defendant had the right to be asked again and
demonstrate that his attempted waiver was indeed knowing, intelligent, and
voluntary.
As for the initial inquiry, the judge merely asked personal background
questions along with technical questions regarding the nature of the charges,
statutory elements, sentencing consequences, motion practice, trial strategy, his
right to remain silent, and other legal topics. She should have done more. See
Outland, 245 N.J. at 507 ("[T]he trial court's colloquy fell short of that required
by our jurisprudence . . . the trial court did not inform defendant of the nature
and consequences of his waiver to ensure that waiver was knowing and
intelligent, but rather quizzed him on a variety of criminal law topics.").
The judge's evident skepticism about defendant's good faith in making the
application is understandable in light of his difficulties with several counsel.
Defendant may have reinforced that skepticism by failing to participate in the
interview for his presentence report on the earlier murder conviction. But the
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judge is obligated to ensure defendant understood the potentially disastrous
consequences of self-representation. See id. at 508-10. A judge must explain
the nature of the charges and applicable defenses, a seemingly inherent
inconsistency in the doctrine. See id. at 508-09. From a practical point of view,
it seems inconsistent to inform a defendant on-the-spot about his case, and then
elicit, also on-the-spot, the voluntary and intelligent nature of a waiver of a
consequential constitutional right.
Nonetheless, the judge's initial inquiry was fatally flawed because the
judge focused on legal topics instead of informing defendant of the meaning of
his waiver. See id. at 507-08. Denying his right to represent himself seventeen
months later without evaluating whether his waiver was knowing and intelligent
merely compounded that first error. The judge abused her discretion, and
defendant's conviction must be reversed and the matter remanded for a new trial.
As defendant suggests, "the competence necessary to make a knowing and
intelligent waiver of counsel is different from the competence to conduct a
defense." Reddish, 181 N.J. at 592 (citing Godinez v. Moran, 509 U.S. 389, 399
(1993)). Therefore, the "'[t]echnical legal knowledge, as such, [is] not relevant
to the assessment' of whether a defendant can represent himself." Ibid. (second
alteration in original) (quoting Faretta, 422 U.S. at 836). In other words,
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"although a court should not focus on whether a pro se defendant will fare well
or badly, it must ensure that he knows and understands that, by his choice, he
may not do well." Ibid. That did not occur here.
Reversed and remanded for a new trial.
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