COURT STATE OF NEW JERSEY v. EDWARD J. ROMAN, SR

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2199-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD J. ROMAN, SR.,

Defendant-Appellant.

________________________________________________________________

October 19, 2010

 

Argued September 21, 2010 - Decided

 

Before Judges Wefing, Payne and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-04-00254.

 

Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Pierce, on the brief).

 

J. Vincent Molitor, Assistant Prosecutor, argued the cause for respondent (Robert L. Taylor, Cape May County Prosecutor, attorney; Mr. Molitor, of counsel and on the brief).

PER CURIAM

Defendant Edward J. Roman, Sr. appeals from an order entered on August 13, 2008, denying his petition for post-conviction relief (PCR). After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse and remand in part.

A jury found defendant guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser included offense of murder, of his seven-week-old son, Edward Jr. Defendant is serving a twenty-seven-year prison term with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appealed his conviction and sentence, and we affirmed. State v. Roman, 382 N.J. Super. 44 (App. Div. 2005). The Supreme Court thereafter granted certification, 188 N.J. 219 (2006), which was ultimately dismissed, 189 N.J. 420 (2007). Defendant filed a timely PCR petition. Defendant now appeals from the trial court's order denying his petition without an evidentiary hearing.

On September 23, 2001, defendant was babysitting his newborn twin boys when his son Edward Jr. died. As we stated on direct appeal,

An autopsy revealed, however, that Edward Jr. died from multiple skull fractures, hemorrhaging, front subdural bleeding and a swelling of the brain that was allegedly caused by blunt force to two different parts of his head. The autopsy also revealed twenty-seven fractures of the newborn's ribs in various stages of healing. An examination of the other twin disclosed seventeen rib fractures also in different stages of healing.

 

[Roman, supra, 382 N.J. Super. at 51.]

 

Defendant eventually gave a detailed confession to the police relating that, with the screaming baby's head between his knees, he slammed his baby on both sides of the head knocking him unconscious. At trial he recanted that confession and testified that his son had accidentally hit against his knees and lost consciousness while defendant was trying to feed him formula.

The jury acquitted defendant of aggravated assault and endangering the welfare of both twins for the period preceding the fatal incident.

In this appeal, defendant argues that:

I. the pcr court erred in denying mr. roman's pcr as he was deprived [OF] effective assistance of trial counsel.

 

Trial counsel failed to call Mr. Roman's forensic pathologist expert, Dr. Shane, as a defense witness.

 

Trial counsel failed to impeach the State's medical examiner during cross-examination with evidence of the botched Ellen Andros autopsy.

 

Trial counsel failed to object to Dr. Boal's inadmissible testimony concerning her opinion that E.R. suffered a brain injury based upon her review of a CT scan; failed to move for a mistrial due to the testimony; and failed to request a curative instruction.

 

A conflict of interest between Mr. Roman's counsel and Ms. Holton's counsel deprived Mr. Roman of effective assistance of counsel.

 

Defense counsel's cumulative errors establish Mr. Roman's claim of ineffective assistance of counsel.

 

II. the state violated brady v. maryland and the [STATE] withheld material evidence [that] had the capacity to affect the outcome.

Failure to provide Dr. Boal's opinion that E.R. suffered a brain injury and that she reviewed the CT scan of the child's brain.

 

Failure to provide oral opinions of Doctors Gross, Weisberg and Lind concerning the issue of a brain injury after their respective review of the CT scan.

 

Failure to provide the State Medical Examiner's investigation of incompetence lodged against Dr. Gross for the botched Andros autopsy.

 

III. Mr. Roman was deprived [OF] effective assistance of appellate counsel.

 

The prosecutor committed misconduct by failing to advise defense counsel that Dr. Boal had reviewed the CT scan and intended to testify that E.R. suffered a brain injury.

The Daniels issue was not properly presented to the Appellate Division.

 

IV. The state deprived Mr. Roman of his sixth amendment right of compulsory process by threatening Ms. Holton with the loss of custody of J.R. if she testified for the defense.

V. The cumulative effect of the Brady violation, coupled with trial and appellate counsel's ineffective assistance warrant reversal of the conviction and a new trial.

 

VI. An evidentiary hearing was required as Mr. Roman has established a prima facie case of ineffective assistance of counsel and evidence of (A) counsel's failures and (B) prosecutorial misconduct and Brady violations, lie outside the record. Therefore, the Pcr court erred in denying mr. roman's evidentiary hearing request.

I.

Before analyzing defendant s contentions, we note certain basic principles. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel s performance was deficient and that this deficiency was so severe that the defendant was deprived of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A defendant need not, however, show that the deficient representation more likely than not altered the outcome of the case. Id. at 693, 104 S. Ct. at 2068, 80 L. Ed. 2d at 697. New Jersey has adopted Strickland s two-prong measure. State v. Fritz, 105 N.J. 42, 52 (1987).

An evidentiary hearing will be granted on a PCR petition if defendant has presented a prima facie case of ineffective assistance of counsel to support his petition. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citing State v. Preciose, 129 N.J. 451, 462 (1992)). To establish a prima facie claim, a defendant must demonstrate a reasonable likelihood that he will succeed on the merits. Ibid.

"If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing . . . then an evidentiary hearing need not be granted." Ibid. (citations omitted). In other words, a defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Only then can the court determine whether a prima facie case has been made.

Defendant argues in Point I that his privately retained trial counsel did not call Dr. John J. Shane, defendant's forensic pathologist, because defendant did not have the funds to pay the expert's $2500 testimonial fee. Dr. Shane determined that the baby's death was due to "terminal hypoxia" caused by improper resuscitation efforts, that his fractured skull was caused by a single traumatic injury to the occipital bone and that both babies' fractured ribs occurred during childbirth.

Defendant maintains that he decided to testify believing his expert would be called as a witness. He also claims that the $50,000 fee he paid his trial counsel included payment of the expert. Whether or not defendant's payment included expert fees, trial counsel should not fail to call a needed expert witness due to defendant's lack of funds without first seeking assistance from the public defender. See In re Cannady, 126 N.J. 486, 498 (1991); In re Kauffman, 126 N.J. 499, 501-02 (1991).

Defendant argues that his forensic pathologist might have persuaded the jury to convict him of the second degree crime of reckless manslaughter, N.J.S.A. 2C:11-4b(1). The trial court found that defendant's incriminating statement while in custody coupled with the other evidence adduced by the State was so strong that the Dr. Shane's testimony would not have reasonably changed the jury verdict. We are not so convinced. Dr. Shane's testimony went to the very heart of the causation of the child's death. The jury had concerns about the strength of the State's case in that they did not convict defendant of causing the rib injuries to either child. Evidence was presented that defendant had been a caring, involved parent. If trial counsel, knowing the weaknesses in Dr. Shane's evidence, chose not to call him for strategic reasons, such a decision would not be evidence of ineffective assistance of counsel. See State v. Castagna, 187 N.J. 293, 315 (2006). If the decision was indeed made exclusively on economic grounds without concern for trial strategy, however, defendant might well be entitled to a new trial if the court finds that the lack of the expert testimony resulted in a "miscarriage of justice." See generally State v. Perez, 177 N.J. 540, 555 (2003). Accordingly, we are constrained to remand the matter for an evidentiary hearing limited to a determination of whether defense counsel was ineffective in failing to call Dr. Shane to testify at trial.

Defendant also argues that his trial counsel was ineffective in not cross-examining the State's medical examiner about his mistake in another murder case which resulted in the termination of his employment. Trial counsel did tell the jury about this mistake in summation. The medical examiner's prior error was thus revealed to the jury; whether that occurred in cross-examination or summation is a matter of trial strategy.

Dr. Danielle Boal, the State's pediatric radiologist, issued a report indicating she would testify regarding the rib fractures and that she had not seen the victim's CT scan. She did not mention skull fractures. Without notice to the defense or submission of a supplemental report, Dr. Boal reviewed the CT scan one month prior to trial and testified that the child had suffered a non-accidental, severe brain injury. Defense counsel objected to this testimony, which was not included in her initial report. The trial court sustained the objection. Defendant argues here that trial counsel should have moved for a mistrial, requested that the testimony be stricken or requested a limiting instruction. Although trial counsel's failure to request this additional relief does not constitute ineffective assistance of counsel, the State's use of this testimony highlights the potential importance of Dr. Shane's forensic testimony.

Defendant also alleges in his first argument point that trial counsel was ineffective in other respects that lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3e(2).

II.

In Point II defendant argues that the State failed to provide him with material exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct 1194, 1196, 10 L. Ed. 2d 215, 218 (1963). "In order to establish a Brady violation, the defendant must show that: (1) the prosecution suppressed evidence; (2) the evidence is favorable to the defense; and (3) the evidence is material." State v. Martini, 160 N.J. 248, 268 (1999). "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985).

Defendant argues that the failure to provide a supplemental report from Dr. Boal and opinions from the other State doctors concerning the CT scan violated his Brady rights. This expert forensic evidence was not exculpatory in nature and does not implicate defendant's rights under Brady. Defendant further asserts that the State's failure to provide information regarding the medical examiner's botched prior autopsy resulted in a Brady violation. The prior autopsy, however, was known to defense counsel who used the information in his summation. Moreover, this autopsy was not directly related to the case against defendant nor could it fairly be considered exculpatory in nature.

In addition, defendant did not raise this issue on direct appeal and thus it is not properly before the court pursuant to Rule 3:22-4(a)(1).

III

Defendant argues in Point III that he was deprived of effective assistance of appellate counsel. Criminal defendants have a Sixth Amendment right to counsel for a first appeal as a matter of right. Douglas v. California, 372 U.S. 353, 356, 83 S. Ct. 814, 816, 9 L. Ed. 2d 811, 814 (1963). As a result, a defendant may bring an ineffective assistance of counsel claim as to his appellate counsel. Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed. 2d 811, 828 (1985).

Appellate counsel, however, is not required to present all non-frivolous claims. Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3309, 3312, 77 L. Ed 2d 987, 993 (1983). The appellate attorney may use professional judgment in deciding whether or not to bring meritorious claims suggested by the client. Id. at 754, 103 S. Ct. at 3312, L. Ed. 2d at 995. Further, appellate counsel need not raise claims that are "legally unworthy of pursuit." State v. Webster, 187 N.J. 254, 257 (2006). The standard of review for assessing ineffective assistance of appellate counsel is the Strickland/Fritz standard discussed above. State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007); State v. Morrison, 215 N.J. Super. 540, 546 (App. Div.), certif. denied, 107 N.J. 642 (1987).

Defendant argues appellate counsel was ineffective in not raising the Daniels1 issue. The Daniels case was decided after the direct appeal was filed and was addressed by us in our decision. Roman, supra, 382 N.J. Super. at 58-59. This argument is therefore precluded by R. 3:22-5 as we adjudicated this ground for relief on direct appeal.

Defendant argues that appellate counsel was also ineffective in not raising the issue of the prosecutor's misconduct in failing to provide pre-trial discovery regarding Dr. Boal's supplemental testimony. Appellate counsel did raise prosecutorial misconduct on appeal, but did not include the issue of the pre-trial discovery violation. We do not find that this omission meets the Strickland/Fritz standard discussed above. This claim would not have changed our finding that the cumulative prosecutorial misconduct did not deprive defendant of a fair trial. Roman, supra, 382 N.J. Super. at 61 (citing State v. Josephs, 174 N.J. 44, 124 (2002)).

IV.

Defendant argues in Point IV that he was deprived of his Sixth Amendment right to compulsory process. State v. Correa, 308 N.J. Super. 480 (App. Div. 1998) (reversing a conviction based on a violation of defendant's Sixth Amendment right to compulsory process because the terms of the plea agreement provided that the State would not seek an extended prison term for co-defendant if that co-defendant refused to testify for defendant.). He claims that the mother of his children did not testify because she was threatened by the Division of Youth and Family Services (DYFS). Following the victim's death, the surviving twin was removed from the mother's custody by DYFS. Defendant claims that she did not testify because she was told she would not receive her child back if she testified on behalf of defendant. The mother was not a witness to the incident. Other witnesses testified to the good care defendant gave his children prior to the incident. Her proffered testimony that she never observed defendant abuse either baby would have been cumulative. Defendant also presented no competent evidence that the mother was threatened by DYFS.2

V.

In Point V, defendant maintains that the aggregate errors denied him a fair trial. This claim warrants little discussion. As we have already concluded, many of the issues upon which defendant claims error were not errors at all and, to the extent there were any errors, they did not deny him a fair trial.

We do agree in part with defendant's argument in Point VI requesting an evidentiary hearing. As set forth above, an evidentiary hearing is necessary to determine the reasons for trial counsel's decision not to call the defense forensic pathologist. Accordingly, we remand for an evidentiary hearing solely on the question of whether trial counsel improperly decided not to call Dr. Shane as a witness for economic reasons.

A

ffirmed in part; reversed and remanded in part for a limited plenary hearing in accordance with this opinion. We do not retain jurisdiction.

1 State v. Daniels, 182 N.J. 80, 99 (2004), holding that the prosecutor may not reference the defendant's ability to conform his testimony to the proofs based on his attendance at trial.

2 Defendant presented an affidavit from his friend stating that the mother told him she refused to testify because her attorney advised her not to and she had been threatened by DYFS.