STATE OF NEW JERSEY v. KATHLEEN BENNETT-WILLIAMSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0148-05T10148-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KATHLEEN BENNETT-WILLIAMSON,

Defendant-Appellant.

_______________________________________

 

Submitted May 8, 2006 - Decided June 7, 2006

Before Judges Yannotti and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 99-10-1237.

Thomas D. Williamson, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order entered on September 7, 2005 denying her petition for post-conviction relief (PCR). We affirm.

Defendant was charged in Middlesex County Indictment No. 99-10-1237 with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three). Defendant was tried before a jury and found guilty on count three, endangering the welfare of a child. She was found not guilty on the aggravated assault charges in counts one and two but guilty of the lesser-included disorderly persons offense of simple assault. Defendant was sentenced to a four-year term of imprisonment on the child-endangering conviction; however, the judge did not impose a separate sentence on the simple assault conviction.

The evidence presented at trial was summarized in our opinion on defendant's direct appeal. State of New Jersey v. Kathleen Bennett-Williamson No. A-6752-00T1 (App. Div. March 25, 2001). In September or October 1998, defendant was retained to provide nursing care for H.A., a child born on April 13, 1997. H.A. suffered from cerebral palsy, severe brain damage and other disabilities. H.A. had a floppy airway and suffered from asthma. She required regular chest physiotherapy, a procedure which involves the irregular tapping on the chest and back to clear the lungs of mucus. At times, a pump is used to clear the child's throat and airway passages.

H.A.'s parents initially found no problem with defendant's nursing care. However, H.A.'s mother S.A. testified that in the spring of 1999, she noticed a change in H.A. and defendant's attitude toward the child. S.A. noticed that her daughter's crying had become horrific. Defendant showed signs of extreme agitation. Her nursing notes began to reflect anger. Because of their concerns about the care that defendant was providing to their daughter, S.A. and her husband M.A. installed a surveillance camera under the child's crib.

The charges here stemmed from a videotape made in the child's bedroom on June 15, 1999. The tape showed defendant placing the child on a blanket on the floor and striking the child forcefully. The video also showed defendant striking the child in the face or head. S.A. testified that, while the incident was being videotaped, she heard loud cries and thumps in the child's bedroom. M.A. entered the bedroom and confronted defendant. S.A. called 911 and M.A. demanded that defendant leave the house. H.A. was taken to a hospital but there was no evidence of bone injury, head trauma, skull fracture or any other acute trauma. The hospital's discharge summary ruled out institutional abuse. When the child returned home, S.A. noticed a cut and black and blue marks under the child's tongue.

Detective John Canavera (Canavera) of the Edison Township Police Department responded to the home with another officer. Canavera testified that he took custody of the videotape. He stated that:

I'm not a medical expert so I could not render an opinion so far as what I actually viewed on the videotape. I made arrangements to get together with a pediatric specialist in critical care to have her view the tape and get an opinion from her as to whether this was any type of medical procedure that she had ever seen before.

Canavera identified the specialist and stated that, after speaking with her, he signed complaints against defendant.

Ellen Klingsberg (Klingsberg), a registered nurse in pediatrics, testified as an expert for the State. Klingsberg explained to the jury the method of providing appropriate "respiratory physical therapy." Klingsberg stated that she watched the videotape. She testified that defendant's initial striking of the child was not safe therapy because defendant used a closed fist against the child's spine. She opined that, if the child had been extremely congested, defendant should have used the suction pump.

Klingsberg did not offer an opinion on whether defendant's "flat hand" manipulation was appropriate but stated that striking the child on her face or head was not acceptable nursing practice. Klingsberg said that the suctioning procedure used by defendant was appropriate but the chest therapy used was not because it had been applied to the child's spine area. Klingsberg expressed her opinion that the overall procedure employed by defendant was not the standard of care.

In her testimony, defendant discussed the incident shown on the videotape and stated that she had provided to H.A. appropriate nursing care. Defendant asserted that she struck the child because the child had been choking on her own mucous. Defendant said that when she took H.A. out of the crib, the child was cyanotic. Defendant denied that she struck H.A. in the head and explained that, although it may have appeared that she hit the child in the head with her fist, she actually stuck the child on the back.

Defendant also said that she punched a towel down next to the infant to keep the towel from obstructing the child's mouth. This, she said, may have appeared to be a blow to the child's face but it was not. Defendant also testified that at this point she pushed H.A.'s head forward so that her mouth would be over the towel. The child had cried. According to defendant, she struck the child on her back but these strikes all were between the child's shoulder blades.

Following her conviction and sentencing, defendant appealed. We reversed the child endangering conviction but affirmed the conviction for simple assault. Id. at 16. We stated in our opinion that defendant had argued that she had been denied the effective assistance of counsel. We did not remand for a hearing to address this claim because we concluded that it was reversible error for the judge to have allowed Canavera to testify that he signed his complaints after speaking with the pediatric specialist. We concluded that the admission of the testimony was improper under State v. Bankston, 63 N.J. 263, 268 (1973).

We noted that, when Canavera testified about the meeting with the specialist and his filing of the complaints, the trial judge called the attorneys to side bar to express his concern about the testimony. He asked defense counsel whether he had purposely not objected. Defense counsel told the judge that he was not objecting to the testimony. We stated in our opinion,

It is difficult to imagine why defense counsel would have wanted this evidence to have been admitted as a matter of trial strategy. Nevertheless, we need not decide whether his failure to object, or to move to strike the testimony, constituted ineffective assistance of counsel. In our view, admission of the evidence constituted plain error and merits reversal.

[Bennett-Williamson, supra, at 10-11.]

Although finding that Canavera's testimony violated Bankston, we determined that the violation did not taint the simple assault conviction. We stated, "In our view, the Bankston violation infected only the endangering conviction because it pertained primarily to whether defendant's conduct caused H.A. harm that would make her an abused or neglected child under Title 9." Id. at 13. We further determined that there was sufficient evidence to support defendant's conviction for simple assault.

In addition, we stated that although the issue had not been raised in the trial court or on appeal, the jury instructions on the endangering charge were flawed because the trial judge erroneously defined the term "abused or neglected child." We noted that, "It is unclear why defendant's trial counsel did not take exception to the trial court's instruction, or why appellate counsel has not raised the issue on appeal." Id. at 15.

We remanded for a new trial on the endangering charge and for sentencing on the simple assault conviction. Id. at 16. The State filed a petition for certification with the Supreme Court. The petition was denied. State of New Jersey v. Kathleen Bennett-Williamson, 177 N.J. 572 (2003).

A new trial on the child endangering charge was held before a different judge, Judge Philip Lewis Paley. The jury found defendant not guilty. On January 7, 2005, Judge Paley sentenced defendant to 60 days in jail for the simple assault conviction. Defendant appealed the sentence and we stayed the sentence pending appeal. Defendant filed a petition for PCR with the trial court on or about January 10, 2005. In her petition, defendant alleged that she had been denied the effective assistance of trial counsel. In particular, defendant claimed that trial counsel had been deficient because he failed to object to the jury instructions, did not interview a "key" witness and did not object to testimony admitted at trial in violation of Bankston.

We affirmed defendant's sentence by order entered on May 19, 2005. On June 1, 2005, the judge denied a stay of the sentence. A judge of this court thereafter declined to entertain defendant's motion for a stay on an emergent basis. Defendant then moved before us for a stay of the sentence pending a decision on her PCR petition. The motion was denied. However, the trial judge later stayed the remainder of the sentence and ordered defendant's release from jail. She had then served about 20 days of her sentence.

On July 22, 2005, defendant requested that Judge Paley recuse himself from considering the petition for PCR. In his supporting certification, defendant's counsel stated that when the judge sentenced defendant he had mischaracterized certain facts and, according to counsel, the judge's misstatements "call[ed] into question" the judge's ability to handle the petition objectively. Counsel additionally stated that the judge erred in rejecting defendant's request to stay the sentence so that defendant could attend an annual Elks convention in Wildwood. The judge later ordered defendant's release from jail but he denied her permission to go with a disabled friend to Philadelphia for medical treatment. Counsel asserted that when he released defendant from jail, the judge stated that defendant could go to Wildwood. Counsel asserted that the judge's comment was inappropriate because the Elks convention had already been held.

Counsel further argued that the judge had circumvented the court rules because the Presiding Judge of the Criminal Division in Middlesex County had been "left out of the process" when the petition had been assigned to the judge. In addition, counsel asserted that judge had improperly limited the issues that could be raised at the hearing to the Bankston violation. This limitation indicted to counsel that the judge had come to "the post conviction process with a closed mind."

Judge Paley considered the recusal motion on August 12, 2005 and rendered a decision on the record. The judge rejected defendant's assertion that he had misstated the facts when sentencing defendant. The judge rejected the claim that he was biased because he would not let defendant travel to Wildwood or leave the State. The judge additionally found no merit in defendant's assertion that the Presiding Judge of the Criminal Division had not been properly consulted on the assignment of the matter. The judge noted that the petition had been filed directly with him and it was standing practice to have the trial judge consider the PCR petition. According to the judge, the Presiding Judge later confirmed the assignment. The judge further found that the fact that he limited the issues at the evidentiary hearing to the Bankston violation did not show any bias on his part.

After deciding the motion for his recusal, the judge began the hearing on the PCR petition. PCR counsel stated that he wanted to seek leave to appeal from the judge's decision and the judge agreed to adjourn the matter so that counsel could file a motion for leave to appeal. However, PCR counsel stated that since defendant's trial attorney Richard Veitch (Veitch) was present in court, he thought it best to begin his testimony. The hearing commenced and Veitch testified.

Defendant thereafter filed a motion for leave to appeal, seeking review of the judge's determination to limit the hearing to the Bankston violation and the denial of the recusal motion. The motion for leave to appeal was denied.

The hearing continued on September 2, 2005. Veitch completed his testimony and defendant testified. After hearing argument of counsel, the judge rendered his decision from the bench, in which he concluded that defendant had not established a basis for PCR. An order was entered on September 7, 2005 denying the petition and staying the remainder of defendant's custodial sentence pending appeal.

On this appeal, defendant raises the following points for our consideration:

POINT I: DEFENDANT IS ENTITLED TO POST CONVICTION RELIEF IMMEDIATELY.

POINT II: THE BANKSTON VIOLATION.

POINT III: LACK OF REQUIRED INVESTIGATION AS TO EXPERTS MEETS TEST FOR GETTING POST CONVICTION RELIEF.

POINT IV: FAILURE TO OBJECT TO INSTRUCTIONS SHOWS A FUNDAMENTAL LACK ON THE PART OF DEFENDANT'S ATTORNEY.

POINT V: DEFENDANT WAS PREJUDICED.

A. SIXTY DAY CUSTODIAL SENTENCE.

B. REFUSAL TO STAY CUSTODIAL SENTENCE.

C. REMARK ABOUT GOING TO WILDWOOD AND RESTRICTION.

D. LIMITS ON THE HEARING.

E. REFUSAL TO ADMIT MISTAKE OR FACE REALITY.

F. LIMIT TO SCOPE OF POST CONVICTION HEARING.

POINT VI: THE COURT SHOULD NOT GIVE DEFERENCE TO THE TRIAL JUDGE'S DECISION.

We have carefully considered defendant's arguments and thoroughly reviewed the record before us. We are convinced that the judge did not err in denying PCR relief. We affirm substantially for the reasons stated by Judge Paley in his decision on the record September 2, 2006. We add the following.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, defendant must meet the following test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]

To establish that his or her attorney's performance was deficient, a defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In assessing whether counsel was deficient in his representation of a defendant, the court must presume that the attorney made "all significant decisions in the exercise of reasonable professional judgment." State v. Savage, 120 N.J. 594, 614 (1990) (quoting Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). In addition, to establish that defendant was prejudiced by the deficient performance of his attorney, defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

Because there are "inherent difficulties in evaluating a defense counsel's tactical decisions from" the attorney's perspective, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." State v. Arthur, 184 N.J. 307, 319 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95).

Here, defendant contends that her attorney at the first trial erred in his representation and had counsel taken other actions it is probable that she would not have been convicted of simple assault. Defendant contends that counsel erroneously failed to object to Canavera's improper testimony, did not retain a nursing expert to counter Klingsberg's testimony, failed to contact key witnesses, did not object to the erroneous jury instructions, and failed to obtain photos of specific frames of the videotape.

We note first that at the hearing on the PCR petition, Veitch testified that he decided not to object to Canavera's testimony as a matter of trial strategy. Veitch stated that he did not want to call further attention to Canavera's testimony which might have been harmful to his client. We note that in our opinion on the direct appeal, we stated that it was "difficult to imagine why defense counsel would have wanted this evidence to have been admitted as a matter of trial strategy." However, we need not determine whether counsel's strategic judgment was appropriate in the circumstances, because counsel's failure to object to Canavera's testimony on the ground that it violated Bankston had no bearing on the simple assault conviction. We found in the direct appeal that the Bankston violation only "infected" the endangering conviction "because it pertained primarily to whether defendant's conduct caused H.A. harm that would make her an abused or neglected child under Title 9." Bennett-Williamson, supra at 13. Therefore, insofar as the simple assault is concerned, defendant was not prejudiced by Veitch's decision not to object to the testimony.

We likewise reject defendant's assertion that trial counsel was deficient because he failed to retain a nursing expert to counter Klingsberg's testimony. At the hearing, Veitch testified that he initially retained Mary McLaughlin (McLaughlin), who is a registered nurse. McLaughlin reviewed the videotape and provided a written report to Veitch. She also told him that defendant's treatment of the child as shown on the tape was "bizarre and unacceptable nursing technique." Veitch testified that after McLaughlin's reaction to the tape, he "shifted . . . off the quest for an expert." He did not want to "shop for an opinion." Veitch did not recall seeking another expert. He chose to proceed without an expert and have defendant explain the treatment shown on the tape.

Defendant contends that Veitch failed to provide McLaughlin with the child's medical records, which defendant says was essential to evaluating the appropriateness of the care shown on the videotape. Defendant asserts that McLaughlin did not address issues such as "fundoplication" and "gastrotomy" in her report, and did not deal with the tracheotomy that the child underwent shortly after the incident on June 15, 1999. Defendant further asserts that Veitch did not provide McLaughlin with a copy of a nursing text that she had made available to him. However, there is no evidence that, even if Veitch had taken all of these steps, McLaughlin would have reached a conclusion other than her view that the care depicted on the videotape was "bizarre and unacceptable nursing technique." Defendant has not overcome the presumption that Veitch's decision not to call McLaughlin was "sound trial strategy." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 695.

Nor is there any evidence to establish that some other expert would have provided a report and testimony with an opinion that the care shown on the videotape was appropriate. We cannot speculate what some other expert witness might have said if retained by Veitch to testify. Based on this record, we cannot conclude that Veitch's decision not to present expert testimony was so erroneous that it deprived defendant of her right to an attorney. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Defendant also argues that trial counsel erred in failing to call Dr. Dennis McGill (McGill) and Dr. Sushmita Mikkilineni (Mikkilineni) as witnesses. McGill was the emergency room physician who examined H.A. after the June 15, 1999 incident. McGill wrote in his report that he found no injuries and ruled out "institutional abuse." Mikkilineni was the child's primary care physician. Mikkilineni is said to have recommended that H.A. have a tracheotomy because of problems with mucous buildup. H.A.'s parents initially refused the advice but later agreed to the procedure in July 1999. According to defendant, Veitch never contacted Mikkilineni to discuss the child's condition, nor the appropriateness of using "back blows versus a Heimlich" maneuver in caring for the child.

Even if we assume that Veitch erred in failing to call these witnesses at trial, the record does not establish that the testimony would probably have led to a different result. The fact that McGill may not have found any injuries when he examined the child does not mean that defendant did not commit the simple assault. A person is guilty of simple assault if that individual "[a]ttempts to cause or purposely, knowingly or recklessly causes bodily injury to another." N.J.S.A. 2C:12-1a(1). Physical discomfort or pain is sufficient to constitute bodily injury. State in the interest of S.B., 333 N.J. Super. 236, 244 (App. Div. 2000).

Furthermore, there is nothing in the record to show that Mikkilineni would have opined that defendant's care of the child as shown on the June 15, 1999 videotape was appropriate. Testimony by Mikkilineni concerning H.A.'s medical problems would not have established that defendant did not commit a simple assault on June 15, 1999.

We additionally find no merit in defendant's assertion that Veitch's failure to object to the jury instructions on child endangerment requires a new trial on the simple assault charge. Although we concluded in the direct appeal that the instructions on the endangerment charge were erroneous, that error had nothing to do with the simple assault charge. Defendant speculates that the erroneous instruction on child endangerment may have led to her conviction of that offense and the jury may have decided to add a conviction for simple assault as a sort of "throw away." The contention is wholly without merit. Surely, we cannot find that defendant was denied the effective assistance of counsel on the basis of such speculation.

We also reject defendant's contention that the judge erred in refusing to recuse himself. Disposition of the motion was committed to the sound discretion of the trial judge. Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (citing Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990). Here, the judge carefully considered each of the grounds upon which defendant sought his recusal and in his decision placed on the record on August 12, 2005 properly found that there was no reason for his disqualification.

We have considered the other contentions raised by defendant and find them not to be of sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

 
Affirmed.

"Cyanosis" is a "bluish discoloration of the skin and mucous membranes resulting from inadequate oxygenation of the blood." The American Heritage Stedman's Medical Dictionary 202 (1995).

"Fundoplication" is a surgical procedure "of tucking or folding the fundus of the stomach around the esophogus to prevent reflux." The American Heritage Stedman's Medical Dictionary 301 (1995). "Gastrotomy" is an incision in to the stomach. Id. at 328.

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A-0148-05T1

RECORD IMPOUNDED

June 7, 2006