STATE OF NEW JERSEY v. JAMES MESSINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0535-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

 

v.

 

JAMES MESSINO,

 

Defendant-Appellant.

________________________________

December 27, 2010

 

Submitted November 17, 2010 - Decided

 

Before Judges Sapp-Peterson and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 99-02-0113.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

 

SeanF. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant appeals the denial of his motion for post conviction relief (PCR). A jury convicted defendant of aggravated manslaughter, N.J.S.A. 2C:11-4, and endangering the welfare of a minor, N.J.S.A. 2C:24-4(a). The court imposed an aggregate twenty-nine-year custodial sentence subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In a published opinion, State v. Messino, 378 N.J. Super. 559 (App. Div. 2005), we affirmed the conviction and sentence imposed. The Supreme Court denied certification. State v. Messino, 185 N.J. 297 (2005). Defendant filed a pro se PCR petition in 2005. The trial court conducted oral argument on April 8, 2008, and subsequently issued a written opinion denying the petition. We reverse and remand for an evidentiary hearing.

Defendant's conviction arose out of the death of Dakota Roberts, the twenty-three-month-old son of defendant's paramour, Laurie Roberts, with whom defendant resided at the time of Dakota's death. The pertinent facts set forth in our earlier opinion are recounted here:

From the time of his birth, [Dakota] suffered from an enlarged scrotum resulting from "hydrocele" or fluid around the testicles. [Dakota] also suffered from a genetic disorder called Hunter's Syndrome, a form of mucopolysaccharidosis (MPS), which is a condition that affects the joints and bones and makes movement of the arms difficult. On May 29, 1998, two days before his death, [Dakota] underwent surgery to reduce the size of his scrotum. Dr. Michael Louis Nance, a pediatrician at Children's Hospital of Philadelphia, performed the operation. The doctor testified that at the time of the surgery, [Dakota]'s scrotum was slightly enlarged and bruised and the bruising extended to [Dakota]'s lower abdomen. Nance stated that he observed blood in the tissues surrounding [Dakota]'s scrotum, which he had never seen when performing a hydrocele reduction procedure. Nance said that [Dakota]'s platelet count was normal. The child's blood clotting ability also was normal. Nance stated that the incision made during the operation was not near [Dakota]'s mesentery, the fibrous tissue that holds the small bowel in place and supplies blood to the bowel. [Dakota] was discharged from the hospital on May 30, 1998.

 

After [Dakota]'s release from the hospital, Roberts and defendant left [Dakota] at the home of Jean Mangini, Roberts' aunt. Roberts and defendant went home and went to sleep. [Dakota] was brought home around 9:30 in the evening. Roberts testified that defendant put [Dakota] to bed around 10:30 p.m. While [Dakota] slept, Roberts and defendant watched rented movies.

 

Around 5:30 a.m., the phone rang and [Dakota] was awakened. Roberts picked up [Dakota] to calm him and then she handed the child to defendant, who said he would put [Dakota] back to bed. Roberts went upstairs to the bathroom and, while she was in the bathroom, Roberts heard [Dakota] cry out. Roberts testified that she went back downstairs and asked defendant why [Dakota] had cried out. Defendant said that [Dakota] did not want to go to sleep. Roberts and defendant went to bed, but shortly thereafter Roberts heard [Dakota] making a gagging sound. She went to the child and saw that his body was "clenching and unclenching." Roberts thought that [Dakota] was having a seizure. Roberts and defendant called 911.

 

. . . .

Anita Brown, a registered nurse who attended to [Dakota] in the emergency room, testified that [Dakota] was "still and unresponsive" when he was first brought to the hospital. She noticed that [Dakota] had a huge bruise on the lower right abdomen[] that was larger than a grapefruit and round in shape. Brown also noticed that [Dakota]'s scrotum was swollen and appeared to be filled with blood. Brown approached defendant and she asked him what happened but defendant did not reply. Brown testified that defendant was "very pale and very quiet." The medical personnel worked for an hour-and-a-half to resuscitate [Dakota]. Their efforts failed and [Dakota] died.

 

An autopsy was performed at Children's Hospital of Philadelphia. Dr. Paul Hoyer, the assistant medical examiner for Gloucester County, testified that the autopsy revealed that the surgical incision that had been made in the hydrocele procedure was open and gaping. The autopsy also revealed that about a quart of blood had collected in [Dakota]'s abdominal cavity. Hoyer observed a four-inch tear of the child's mesentery. He testified that in his opinion the tear had been caused by a "large blunt force," such as from a forceful kick or punch, a car accident or a fall from ten or fifteen feet. Hoyer also observed the bruise on [Dakota]'s abdomen and concluded that the child's death might be the result of child abuse and homicide. He asserted that [Dakota]'s death was not a "metabolic death." The cause of death was "hypovolemic shock."

 

[Messino, 378 N.J. Super. at 569-71.]

 

In addition to Dr. Hoyer, the jury also heard testimony from doctors who treated Dakota three months prior to his death for multiple fractures, which they did not attribute to Dakota's MPS condition. Defendant called two witnesses, both of whom provided expert testimony. Dr. Roger A. Berg, a radiologist, testified that the tibia fractures that Dakota sustained prior to his death were the type of fractures common in children learning to walk. Dr. John E. Adams, a forensic pathologist, testified that the "patterns in the bruise" on Dakota's body were not consistent with a blow and that Dakota suffered from a blood clotting problem, the origins of which he could not determine. Messino, supra, 378 N.J. Super. at 574. He expressed the opinion that Dakota's mesentery contained Hurley-Schleie cell deposits that caused the mesentery tissue to thicken and become shorter, making Dakota more susceptible to injuries caused with considerably less force. He concluded that Dakota had not sustained a mesentery tear but rather suffered from a rare bowel injury, where the bowel had been torn from the mesentery.

In his PCR petition, and reiterated here in this appeal, defendant's chief complaint was that his trial counsel provided ineffective assistance of counsel by (1) failing to interview and retain an expert in the field of MPS, as well as other experts, despite being provided with the necessary funds to do so; (2) failing to properly investigate the results of the investigation into allegations of abuse undertaken by the Division of Youth and Family Services (DYFS) wherein no abuse was substantiated; and (3) failing to present character witnesses. To support these claims, defendant presented affidavits from his mother and Alexander Esposito (Esposito), the private investigator retained by trial counsel's firm. Defendant also presented reports from experts in the fields of urology and pathology, as well as letters from character witnesses.

The affidavit of defendant's mother indicated she (1) paid trial counsel's firm $100,000 to defend her son but encountered numerous problems in getting feedback from the firm; (2) was told that the firm was going to retain Dr. Michael Baden as an expert; and (3) provided funds to retain him, but Dr. Baden was not retained. In his affidavit, Esposito stated that he believed he was the primary investigator retained in connection with the matter, but "was repeatedly told to wait to interview witnesses and consequently, witnesses named by the State were never interviewed by the defense that [he] was aware of." He also indicated that trial counsel "repeatedly advised/ordered [him] to wait on viewing evidence" and that he was not given authority to view evidence of the bed and bed rail in possession of the State until the actual eve of trial.

In denying relief to defendant, the trial court was satisfied the record demonstrated that (1) reasonable investigation took place; (2) no credible evidence was presented to support the conclusion that trial counsel failed to review records from DYFS that would substantiate that no prior abuse had been found; or (3) that trial counsel was otherwise "deficient in the way he chose to use the DYFS information."

The validity of a claim of ineffective assistance of trial counsel is judged by determining whether counsel's conduct changed the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 684, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 691 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). Specifically, under the Strickland-Fritz test, a defendant seeking post-conviction relief based upon a claim of ineffective assistance of counsel must show (1) that counsel's performance was deficient and (2) that there exists "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Id. at 462.

Where a defendant claims that trial counsel was ineffective in failing to call additional witnesses, the court must consider whether the failure to call additional witnesses would have changed the jury's verdict. State v. Allegro, 193 N.J. 352, 370 (2008) (citing State v. Ways, 180 N.J. 171, 187 (2004). Additionally, the failure to conduct an adequate pre-trial investigation may give rise to a claim of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 464.

There was disputed testimony between the experts as to whether Dakota's injuries resulted from abuse or other factors, including the side effects of a rare metabolic disease from which Dakota admittedly suffered. According to Esposito, he was instructed to contact Dr. Michael Baden, who reviewed much of the evidence in the case and rendered an oral opinion to him and trial counsel but explained he could not render a written opinion regarding the cause of death without first consulting an MPS specialist. Espositio was unaware whether such an expert was ever found by trial counsel. Esposito also interacted with a forensic pathologist, Dr. John Smialek, on behalf of defendant. Dr. Smialek told Esposito that trial counsel's firm sent materials for him to review but never forwarded the retainer funds. He indicated that Dr. Smialek inexplicably withdrew from the case in March 2000.

Esposito's affidavit raised additional questions related to the investigation and why, if funding for the investigation was provided, certain investigations were not pursued:

Early on and for quite a long period[,] the prosecution advised that to the best of their knowledge[,] no post mortem radiographic studies existed. After several months of waiting and hearing these denials, I contacted the Gloucester County Medical Examiner's Office and found there to exist both antemortem and post mortem radiologic films in their possession. I was able to personally view such films at the medical examiner's office. I immediately reported my findings to [trial counsel] and he advised that [his] law office would take measures to recover and provide the funds to recover such. At a subsequent status conference[,] I recall [trial counsel] discussing this with [the assistant prosecutor]. To the best of my knowledge and belief[,] these post mortem studies were not recovered.

 

22. I was never given authorization to speak with any extended family members of the Messinos or the Roberts families as witnesses, although it was made known to me that they may have had relevant information in the case, and although[] I specifically requested authorization. It was again my belief that [trial counsel] was not permitted by [his law firm] to further advance any investigation specifically with me or my office or for that matter with any other private investigator that I was aware of. Again though[,] because I was not privy to such matters[,] I can not confirm such absolutely.

 

23. Specifically, I was never authorized to visit the scene of the crime or to interview the members of the household and the family, who had care of the child: specifically, Elaine Roberts, William Roberts, Laurie Roberts, Jean Mangini, and the sister of Laurie Roberts, who would reportedly not cooperate with the State.

 

24. Between the time that Dr. Baden was unable to render an opinion and the time of hiring John Adams, I was not aware of the [defense] firm hiring or seeking an MPS specialist or a forensic pathologist.

 

a. To the best of my belief and knowledge, the [defense] firm never actually sought to hire a child abuse expert, a urologist, a derm[a]tologist, a professional to comment on the behavioral problems of the child, or any other medical expert other [than] those described herein above. Again because I was not privy to all matters at the [defense] firm regarding the Messino matter, I can not confirm this with absolute certainty. I am only of this belief [from] my understanding through conversations with [trial counsel] and the Messino family.

 

b. I was not permitted to view or examine DYFS records regarding the deceased in the Messino matter. Consequently, no witnesses that may have been named in the DYFS records were interviewed by my[]self or my office prior to trial.

 

c. I was not authorized by the [defense] firm to have contact with or interview any medical personnel[] who treated[] DR[] prior to the time [of] death.

 

d. To the best of my knowledge and belief[,] on or about November 3rd, 2000, the defense was ordered to furnish a report from Dr. Michael Baden to the State[.] [H]owever, to the best of my knowledge[,] no such report was ever produced. Again to the best of my knowledge, Judge Lisa ordered that the report would be barred if not produced by November 9th, 2000.

Unquestionably, the medical issues in the case were complex. The expert reports defendant submitted in support of his petition contain opinions confirming the opinion of Dr. Adams that Dakota's pre-existing MPS complicated "by failure of the child's clotting mechanism, [were] absolutely unique[.]" Under these circumstances, testimony from additional experts cannot be viewed as cumulative for purposes of determining whether, if called, their testimony would have altered the jury verdict. Given the inference of abuse that could be drawn from Mangini's testimony that Dakota started to sustain injuries after defendant and Roberts started dating, testimony from character witnesses and additional experts, as well as from the DYFS workers who conducted an investigation into suspected abuse, may have altered the jury's verdict.

Defendant was indicted for knowing or purposeful murder but found guilty of aggravated manslaughter, "recklessly caus[ing] death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4. In his statement to police, he claimed that Dakota's death was an accident. If trial counsel and his firm were provided with sufficient funds, as defendant alleges, to mount a comprehensive investigation, particularly with respect to the medical issues that were unquestionably critical to defendant's defense, and trial counsel inexplicably failed to do so, ineffective assistance of counsel may be established. On the other hand, it may very well be that these and other options were properly considered, investigated and ultimately rejected by trial counsel for perfectly valid reasons, including strategic reasons, in which case defendant is not entitled to relief. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable" in a claim for post conviction relief based upon ineffective assistance of counsel. State v. Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010) (quoting Strickland, supra, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

We are satisfied, however, that the proofs presented in support of the petition represent more than bald assertions. Defendant's allegations were supported by affidavits based upon the personal knowledge of the affiants, expert reports and DYFS records. If believed, a jury may have reasonably concluded that Dakota's death was accidental rather than as a result of reckless indifference to the value of human life for which defendant was convicted. Under these circumstances, defendant was entitled to an evidentiary hearing to further flesh out his claims.

Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.