STATE OF NEW JERSEY v. MAX YVES MERLAIN

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2294-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MAX YVES MERLAIN, a/k/a

MAX MERLAIN,

Defendant-Appellant.

____________________________

March 26, 2012

 

Submitted December 14, 2011 - Decided

 

Before Judges Cuff, Lihotz, and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-0421.

 

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

 

Paula T. Dow, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

 

PER CURIAM

A jury found defendant Max Yves Merlain, a/k/a Max Merlain, guilty of serious bodily injury murder, N.J.S.A. 2C:11-3a(1), and endangering the welfare of the two-year-old son of his girlfriend. Judge Heimlich imposed a forty-five year term of imprisonment subject to a No Early Release Act (NERA)1 parole ineligibility term on the murder charge and a concurrent term of eight years subject to a four-year parole ineligibility term on the endangering charge.

On August 8, 2004, at 7:41 p.m., Dominique, defendant's girlfriend, called 9-1-1 to report that her two-year-old son Julio had vomited, stopped breathing, and had no pulse. When the first ambulance arrived, defendant was outside and flagged down the emergency response team. The crew found the child limp and unresponsive to all stimuli. He had no pulse, no respiration, and no blood pressure. He was cyanotic, pale and dry, and his extremities were cool to the touch.

Julio had bruising on the left side of his face, bilaterally on his upper front abdomen, on his lower right abdomen, and on the upper left side of his back. He appeared to have suffered a traumatic injury. His mother told the emergency responder that her son had fallen in the bathtub the day before, and had not exhibited any mental changes after the fall.

Emergency personnel placed the child in the ambulance and began cardiopulmonary resuscitation (CPR). Paramedics intubated him and provided medications. However, his heart showed no electrical activity, and his condition did not improve. The ambulance departed for Trinitas Hospital at 8:13 p.m., and it arrived at 8:23 p.m. CPR was performed and medications administered, to no avail. At 8:36 p.m., Julio was pronounced dead. He was 35 inches tall and weighed between 25 and 35 pounds.

When medical personnel declared the child dead, his temperature was 97.3. The child was in rigor mortis in the extremities, and medical personnel noted lividity in his lower extremities, suggesting he had been dead for some time.

Medical personnel at the hospital noted an abrasion on Julio's face and bruising on the left side of his face, abdomen, and back. His belly was distended, indicating possible trauma. They recorded the mother's explanation for the bruising--the previous day's fall in the bathtub--but noted that the bruising was extensive and appeared to be less than twenty-four hours old.

Defendant traveled to the hospital in the paramedic vehicle. He was crying. Defendant stated that Julio had been sick for a couple of days, was vomiting, and he remarked he may not have administered CPR correctly.

The emergency room nurse also noted defendant's statements that he had cared for the child all day while the child's mother worked, that the child had slept all day, vomited, and defendant attempted to give the child juice because he kept wanting something to drink. The nurse, as well as the emergency room doctor, acknowledged that the facial bruising combined with vomiting and sleepiness the following day could be a sign of a brain injury. However, the emergency room doctor found it significant that treatment was not sought sooner and considered the delay suggestive of non-accidental trauma.

When informed of Julio's death, his mother screamed and began to weep. Defendant also was upset. Doctor Keyon Hood questioned the two about Julio's history, and his mother related that he had fallen in the tub the night before, hitting the left side of his face. She reported that he suffered no loss of consciousness or vomiting that night, and he went to bed without further symptoms other than bruising or swelling on the left side of his face. On the day of his death, she left her son in defendant's care from 5:45 a.m. until sometime after 3 p.m., while she went to work.

Defendant said he awoke in the morning to find the child covered in vomit. Defendant changed him and the two went back to sleep. When Julio awoke again, he vomited and continually asked for juice. He vomited again around 7:30 p.m. and fell to the floor, at which time EMS was called.

Defendant and the child's mother related essentially the same version of events to Elizabeth police detectives Robert Hilongos and Steven Owsiany, who had responded to the hospital upon the report of Julio's death. After speaking with the child's mother and defendant, the officers observed the child's body, noting the bruises.

The following day, August 9, 2004, an autopsy was performed. The medical examiner, Dr. Leonard Zaretski, found that the manner of death was homicide by blunt force trauma to the head and abdomen. He found extensive injury to the left side of the child's face, including multiple overlapping irregularly-shaped lesions or spots of various sizes which indicated previous traumas and could not have occurred from the history provided by the child's mother and defendant. The child had contusions of fairly recent origin in the front of his right ear and on the right side of the back of his neck. The child also had a contusion under his left eyelid and another on his upper lip.

The medical examiner also found bruising on the left side of the belly and the forearm. The child had extensive blood accumulation inside his head, causing significant swelling of the brain and a subdural hematoma. The medical examiner also reported deep lacerations in two areas of the spleen and lacerations to the left kidney. The subdural hematoma, the lacerated spleen, or the lacerated kidney could have caused Julio's death.

Later in the day on August 9, 2004, the child's mother and defendant gave statements to the police at police headquarters. Her statement included essentially the same information as relayed at the hospital, except she estimated that Julio had fallen in the bathtub at 6:00 p.m. on August 7, the day before his death.

In his statement, defendant denied causing any harm to the child. He told the police that he had picked up Julio and his mother in Irvington at approximately 8:00 p.m. on Saturday August 7. He observed a bruise on Julio's face, which his mother explained by stating that Julio had fallen out of the bathtub. They arrived at defendant's apartment at approximately 9:00 p.m. That night, Julio's mother and defendant slept in defendant's bed; Julio slept on a sponge mattress on the living room floor. According to defendant, Julio fell asleep soon after they arrived at his apartment.

Between 11:00 and 11:35 p.m., defendant was out of the apartment, picking up his sister from work and driving her home. When he returned home, the child's mother was asleep, and defendant went to sleep too.

Defendant also reported that the child's mother awoke at about 5:00 a.m., and defendant walked her to the bus stop. Julio was asleep when they left the apartment, and he was still asleep when defendant returned a few minutes later.

In his statement, defendant stated he returned to bed and awoke up at 8:00 a.m. He checked on Julio, who was awake on the mattress, covered in vomit. Defendant picked up the child, changed his diaper and clothing, cleaned him up, changed the sheet on the mattress, laid down with him, gave him a bottle, turned on the television, and went back to his bed to sleep. When defendant awoke between 11:45 a.m. and noon, Julio was awake. Defendant attempted to feed him, but the child rejected the food. The two then fell asleep on defendant's bed, with Julio drinking chocolate milk from a bottle.

When Julio's mother arrived home after work, Julio called for her, and defendant gave him another bottle of chocolate milk. According to defendant, while Julio played with his mother, the child drank about three bottles of milk and half a bottle of fruit punch. He then made a noise like he was choking and vomited on the bed. Defendant rushed him to the bathroom and held him over the sink. When defendant turned him over, he observed Julio's "eyes roll to the back of his head." The child was not breathing, so defendant started CPR and told Julio's mother to call 9-1-1. When EMS arrived, they continued to perform CPR and rushed Julio to the hospital, where he was pronounced dead.

On August 11, 2004, the detectives visited defendant's apartment and defendant reenacted the CPR he performed on the child. Subsequently, detectives also visited the mother's apartment in Irvington. Criminal charges were not filed against defendant until May 2006.

Julio's mother testified at trial pursuant to a grant of use immunity. The charges against her were still pending, and she received no promises in exchange for her testimony. She explained that after speaking with her lawyer and seeing the medical evidence, she understood that her son had been murdered, and she wanted justice for him. She did not care what happened to her.

The mother's trial testimony changed from prior accounts, except she stated that the child never took a bath the day before his death and never fell in or out of the tub. When she checked on her son when she awoke the next morning, he had no bruises on his face or side. Julio's mother left for work at about 5:30. Defendant walked her to the bus station. She did not return to defendant's apartment until approximately 5:00 p.m.

When Julio's mother arrived at defendant's apartment, she did not see Julio, and asked defendant for him. Defendant told her to sit down because there was something he had to tell her. He told her that Julio had been throwing up all day, so defendant gave him a bath and the child fell in the tub and had a bruise on his face.

Julio's mother entered the bedroom where she saw Julio laying on the bed, head facing the foot of the bed, with a big bruise on his face and a cut on his lips. He "looked different," tired, and his hands and feet were cold. "He said, 'Mommy,' softly," and he asked for something to drink.

She began asking defendant questions about what happened. Defendant said he did not see the boy fall; he had left the bathroom to get a towel. She asked defendant for some food, and he brought some from the kitchen. However, Julio did not eat even two spoonfuls of food, and when she attempted to put him on the floor, he could not stand. She asked defendant if anything else had happened that day and defendant said "no." He said Julio awoke with vomit all over him, had not wanted to eat, and had watched a little television.

The child's mother wanted to bring Julio to the hospital, but defendant refused because "they might think I did something to him." She thought Julio might be tired--she knew he had a cold--so she picked him up and tried to lay him on his stomach so he could sleep. As she did so, he was breathing very heavily, and he made a big noise. He had vomit all over his nose and mouth, so she and defendant rushed him to the bathroom and put his head under the faucet. She saw his eyes roll back in his head, he went limp and stopped breathing. She called 9-1-1 while defendant attempted CPR pursuant to instructions relayed from the 9-1-1 operator through her. At that point in time, she had been home for about two hours.

Julio's mother admitted she fabricated the story about Julio falling in the bathtub at her home and repeated it to everyone who asked her what had happened to her son. She did so because she was married to Julio's father, who lived in Haiti. She was having an affair with defendant, and she did not know how she was going to explain what happened to her husband. She testified that defendant did not force her to lie, and she made up the story to protect herself. She had only known defendant a short time; their affair ended the day Julio died.

The investigation concerning the child's death was hampered by the mother's fabricated story and a dispute among some experts whether the child's death was accidental or a homicide. Although the medical examiner opined that the manner of death was homicide by blunt force trauma, he commented that some internal injuries could have occurred from improperly administered CPR. In addition, another professional, who did not testify at trial, opined that the death was accidental.

The State presented three expert witnesses who testified that Julio's wounds were incurred four to ten hours before his death, during the period of time he was in defendant's exclusive care. Moreover, the wounds were inflicted, not accidental, and they could not have occurred as the result of a fall in or out of a bathtub.

The State's first expert was Dr. Zhongxue Hua,2 one of the medical examiners. He testified that the manner of death was homicide, with the injuries inflicted rather than accidental. He recounted the injuries found by the medical examiner who conducted the autopsy. He, too, opined that the injuries to the abdomen or the injuries to the brain were lethal in and of themselves.

In terms of timing, Hua opined that all of the contusions were fairly recent, because there were no signs of healing and signs of healing generally would be visible within four hours of an injury. Moreover, at the time of death, the child had bled out into his abdomen nearly eighty percent of his total blood volume. He stated that the child could not have survived very long with that volume of blood loss. Hua believed death occurred within several hours of the injuries.

Hua opined it was highly unlikely that the injuries had been caused by a short fall to a flat surface approximately twenty-four hours before death. The injury to the left eye was significant in that it was located underneath the eye, a non-protruding portion of the face; such an injury could not have occurred through a fall to a flat surface. Multiple lesions on the left side of the face overlaying each other and injuries to both the left and right side of the face were inconsistent with a fall. The injuries to Julio's spleen and kidney also were inconsistent with a short fall of three to four feet; the kidney in particular is a well-protected organ that is difficult to injure. Hua opined the injuries were more consistent with inflicted wounds--for example, being punched, kicked, or having one's head slammed against a surface by an individual of greater body size and muscle strength.

The State also presented Dr. Douglas Miller, an expert in neuropathology. Miller examined the child's brain at the request of the medical examiner's office. He found that the child had suffered a subdural hematoma on the right side, moderate brain swelling, and herniations/shifting of the brain tissue. The hematoma was acute, meaning that it was no older than twenty-four hours, and it would have been fatal, although the child's other injuries accelerated his death.

Julio's brain tissue also evidenced damage from oxygen loss and loss of blood supply. This damage was caused by a combination of both the cranial and abdominal bleeding, which had begun some four to ten hours before Julio died. As a result of his brain injuries, Julio could not have appeared normal prior to his collapse and death.

Miller concluded that the child suffered acute blunt head trauma, which caused the subdural hematoma, brain swelling, and herniations. The trauma occurred with significant force. It could not have occurred as a result of a short fall to the ground.

Miller further concluded that Julio's injuries had been caused by multiple inflicted blows. "There is no way that a single blow could have caused the injury to the spleen, and the kidney, and the abdomen, and to the head simultaneously. They are separate anatomic areas, even in a small child . . . ." Moreover, the injuries to his face were "inconsistent with a single blow to the face, but [were] more consistent with, at least, two or three blows to the face." His injuries were inconsistent with the claim that he had fallen in the bathroom. It was "impossible" that they occurred in that manner.

Finally, the State presented Dr. Ernest G. Leva, an expert in pediatric medicine and child abuse. Leva reviewed Julio's case individually and as a member of the State's Child Fatality and Near Fatality Review Board (the Board). He was "absolutely convinced" that the child's injuries had "nothing to do with a minor fall in the bathtub," and the abdominal injuries were not consistent with CPR. Leva had never seen a child suffer such injuries from a fall from three to four feet in height as initially described by the child's mother. Further, he noted that the literature was consistent that minor falls did not result in serious injuries in children. Thus, Leva opined that Julio's injuries were inflicted.

In response, defendant presented the testimony of Dr. David Emery Wolfe, an expert in neuropathology. He agreed with Miller that Julio's subdural hematoma was acute, meaning that there were no signs of healing. However, he estimated that the hematoma occurred twenty-four to forty-eight hours before Julio's death, because one expects to see signs of healing within that time frame.

Wolfe also observed, as had Miller, that some brain cells had died due to loss of oxygen. He opined that this could have occurred anywhere between six and twelve hours after Julio suffered his injuries. However, he also concluded that the red neurons indicative of the dead brain cells occur in both fatal and non-fatal injuries, and could exist in the brain for a long period of time.

In terms of bruising, Wolfe opined that the bruise on the boy's face was related to the subdural hematoma, and was consistent with having occurred twenty-four hours before Julio's death. The bruise to Julio's abdomen had "ripened" in color and therefore had been there for at least twenty-four hours. While he acknowledged that, microscopically, there had been no evidence of healing, he claimed that fresh, acute bruises could not be dated histologically.

Wolfe concluded that the abdominal bleeding was "consistent with a start of bleeding on the time of the injury to the head." He claimed the spleen had suffered only a small laceration and would have bled slowly. Moreover, Wolfe believed the abdominal and head injuries occurred at the same time because the bruises in both areas could be dated to around the same time. Wolfe appeared to concede on cross-examination, however, that there was no reliable way to date acute bruises.

Finally, Wolfe opined that Julio's injuries were consistent with a fall out of a tub to a bathroom floor the day before his death. The child's height, plus the height of the tub, created sufficient height to suffer a fatal head injury, especially since the surfaces in the bathroom were extremely hard and unyielding. Wolfe acknowledged that the study upon which he relied in reaching this opinion had been highly criticized, and addressed only head injuries, and not abdominal injuries such as those suffered by Julio. He claimed that critics of the study were biased.

Wolfe explained that typically a person who experiences a subdural hematoma has a lucid period immediately following the injury, which could last anywhere from minutes to weeks. However, as a result of the bleeding, they eventually suffer increased intracranial pressure, the symptoms of which can include nausea and explosive vomiting, lethargy, changes in body temperature, and ultimately dilation of the pupils, stupor, and loss of consciousness. He stated that Julio's behavior on the day of his death, as described by defendant, was indicative of such intracranial pressure.

On appeal, defendant raises the following arguments:

POINT I

THE COURT ERRED IN ADMITTING THE DEFENDANT'S WRITTEN STATEMENT WHICH WAS THE PRODUCT OF CUSTODIAL INTERROGATION AND AN INVALID MIRANDA WAIVER.

POINT II

THE COURT SHOULD HAVE GRANTED THE JUDGMENT OF ACQUITTAL AS TO THE CHARGE OF SBI MURDER BECAUSE THE STATE FAILED TO PRODUCE ANY PROOF THE DEFENDANT HAD THE REQUISITE MENS REA.

POINT III

THE COURT FAILED TO ADEQUATELY DISTINGUISH SBI MURDER FROM AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER WHEN THE JURY REQUESTED CLARIFICATION. (Partially Raised Below).

POINT IV

AN EXPERT SHOULD NOT HAVE BEEN PERMITTED TO RELATE THE OPINION OF A NON-TESTIFYING EXPERT IN VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.

POINT V

THE PROSECUTOR EXCEEDED THE BOUNDARY OF FAIR COMMENT WHEN SHE DENIGRATED DEFENSE COUNSEL AND APPEALED TO THE PASSIONS AND SYMPATHIES OF THE JURY.

Misstatement Of The Law and The Hypothetical Example Was Outside The Evidence.

 

Denigration Of Defense Counsel.

 

The Jury Was Adjured To Convict.

POINT VI

THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 45 YEARS WITH AN 85% PAROLE BAR UNDER NERA. THE SENTENCE MUST BE REDUCED.

 

 

 

I

 

Defendant gave a written statement to police at police headquarters the day after Julio's death. He contends his motion to suppress the statement should have been granted. We disagree.

At the Miranda3 hearing, Owsiany and Hilongos testified that on August 8, 2004, they responded to Trinitas Hospital upon the report of a two-year-old boy having died. Owsiany stated that it is standard for detectives to respond and perform a preliminary investigation upon the death of a child.

The detectives arrived at Trinitas at about 9:30 p.m. In a hallway, with medical personnel "buzzing around like bees," they spoke to defendant and the child's mother for ten to twenty minutes. The officers identified themselves as detectives with the Elizabeth police department; no Miranda warnings were issued. The detectives testified at the time they had no reason to believe that the cause of Julio's death was homicide, and neither defendant nor the mother were considered suspects.

Defendant and Julio's mother related the same general information as contained in defendant's written statement. According to Owsiany, defendant appeared "normal" during the conversation; Hilongos described him as "calm." He was "very compliant" and answered all questions asked. He never asked that the questioning stop, nor did he indicate that he wanted to leave. Owsiany said that he and Hilongos were "[c]asual and inquisitive" during the interview. Hilongos said he and Owsiany were calm.

At the end of the interview, the detectives requested defendant and the child's mother make themselves available for a formal statement the following day at Elizabeth Police Headquarters. According to Owsiany, defendant was "very agreeable," and he arranged a time convenient for his work schedule, as did the child's mother.

Owsiany stated that during the hospital interview, neither he nor Hilongos threatened defendant nor told him he was not free to leave, and they made no promises to defendant. If defendant had chosen to leave, the detectives would not have arrested him.

According to Hilongos, he and Owsiany observed Julio's body and spoke to two doctors before speaking to defendant and Julio's mother. Owsiany stated they did not see the child's body until after concluding the interview of defendant and the mother. When they viewed his body, they observed multiple bruises on the boy's face and injuries to the rib cage and abdomen. An EMT pointed out the stiffness of Julio's arm, stating that the child had been in rigor at the time the EMTs used the blood pressure cuff to obtain his vital signs. Upon seeing the child, Owsiany did not believe that his injuries had occurred as the result of a fall in the tub, as had been related by the mother and defendant.

By the time defendant and Julio's mother arrived at the police station the next day, the detectives had attended the autopsy and the medical examiner informed them that the death was a homicide. Defendant and the mother arrived at the police station some time after 5:00 p.m.

At 5:30 p.m., a Union County Prosecutor's detective, Richard Gregory, advised defendant of his constitutional rights, and defendant signed a waiver of those rights. Hilongos and Gregory then spoke with defendant about the incident during a preliminary interview. Hilongos advised defendant there was reason to believe that Julio's death was a homicide, and not accidental. Defendant responded that the facial bruise was a result of a fall in the shower. Hilongos did not recall pressing defendant about that issue or recall any specific interviewing techniques he might have used with defendant. According to Hilongos, defendant appeared to understand that he was being questioned because he was the last person with the child.

Thereafter, between 6:58 p.m. and 8:00 p.m. on August 9, defendant gave a written statement. The statement was taken in a small interview room with one door, a table, chairs on either side of the table, and a computer desk.

In his statement, defendant stated that he could read, write, and understand English, and he had completed high school and one year of college. He acknowledged having been advised of his Miranda rights, and he understood those rights, initialing each right and signing the form. He admitted he was not threatened, nor were any promises made to him to obtain the statement. He stated he was treated fairly by the detectives who took his statement, and he was given an opportunity to read the statement and make any necessary corrections. Finally, he acknowledged that the statement was "an accurate and truthful document."

According to Hilongos and Gregory, defendant never stated he did not want to speak with the detectives or answer their questions. He never said he wanted a lawyer, and he never indicated that he wanted to leave. He was calm and pleasant throughout, as were the detectives; nobody threatened defendant or made him any promises to obtain his statement.

At no time during the interview did defendant leave the room. At the conclusion of defendant's statement, there was some discussion of another interview to which defendant was amenable. Hilongos recalled him saying something like "anything we needed." Defendant then left police headquarters. Defendant was not indicted until May 2006.

Following the evidentiary hearing, Judge Heimlich ruled that defendant's statements were voluntary and admissible. He found the statement taken at the hospital was non-custodial, and part of a routine police investigation. Therefore, there was no reason to issue Miranda warnings at that time. The statement at the police station was taken during a custodial interview, as there was now information suggesting a homicide. However, Miranda warnings were issued and there was no evidence to suggest that the statement was involuntary. Defendant was calm and cooperative throughout, and the police were calm and pleasant. Defendant stated that he understood his rights, and he never indicated any desire to stop the interview.

This court will uphold the Law Division's factual findings, if they are supported by substantial, credible evidence in the record. State v. Diaz-Bridges, ___ N.J. ___, ___ (2012) (slip op. at 26-27); State v. Yohnnson, 204 N.J. 43, 62 (2010).

The Fifth Amendment privilege against self-incrimination, made applicable to the states through the Fourteenth Amendment, provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ." U.S. Const. amend. V. In New Jersey, the privilege is derived from the common law, and it is codified in statute, N.J.S.A. 2A:84A-19, and rule, N.J.R.E. 503. State v. O'Neill, 193 N.J. 148, 176 (2007); State v. P.Z., 152 N.J. 86, 101 (1997); State v. Reed, 133 N.J. 237, 250 (1993).

Custodial interrogations by law enforcement officers are deemed inherently coercive, automatically triggering the privilege against self-incrimination and requiring administration of Miranda warnings. Miranda, supra, 384 U.S. at 444-45, 467-79, 86 S. Ct. at 1612, 1624-30, 16 L. Ed. 2d at 706-07, 720-26; State v. Timmendequas, 161 N.J. 515, 613 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001); P.Z., supra, 152 N.J. at 102. For statements made to police during custodial interrogations to be admissible, the State must prove beyond a reasonable doubt that the defendant waived his right against self-incrimination and his decision to do so was knowing, intelligent, and voluntary in light of all circumstances. State v. A.G.D., 178 N.J. 56, 67 (2003); State v. Presha, 163 N.J. 304, 313 (2000); Timmendequas, supra, 161 N.J. at 613; Reed, supra, 133 N.J. at 250-51.

The State also must prove beyond a reasonable doubt that the defendant's statement to the police was voluntarily made and not the product of coercion. Jackson v. Denno, 378 U.S. 368, 376-77, 84 S. Ct. 1774, 1780-81, 12 L. Ed. 2d 908, 915-16 (1964); State v. Cook, 179 N.J. 533, 562-63 (2004); Timmendequas, supra, 161 N.J. at 613-14; State v. Bey, 112 N.J. 123, 134 (1988); State v. Kelly, 61 N.J. 283, 291-94 (1972).

In determining the voluntariness of a defendant's statement, a judge considers whether it was "'the product of an essentially free and unconstrained choice by its maker,' in which case the statement may be used against the defendant, or whether the defendant's 'will has been overborne and his capacity for self-determination critically impaired . . . .'" P.Z., supra, 152 N.J. at 113 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973)). "This issue can be resolved only after an assessment of the 'totality of the circumstances' surrounding the statement." Ibid. (quoting Arizona v. Fulminante, 499 U.S. 279, 285-86, 111 S. Ct. 1246, 1251-52, 113 L. Ed. 2d 302, 315 (1991)). "Among the factors to consider in determining voluntariness are the suspect's age, education, intelligence, previous encounters with law enforcement, advice received about his or her constitutional rights, the length of detention, the period of time between administration of the warnings and the volunteered statement, and whether the questioning was repeated and prolonged in nature or involved physical or mental abuse." Timmendequas, supra, 161 N.J. at 614. Accord State v. Galloway, 133 N.J. 631, 654 (1993); State v. Miller, 76 N.J. 392, 402-03 (1978).

Here, the trial judge found the testimony of the officers credible. The evidentiary record, coupled with the credibility finding, supports the trial judge's conclusion that defendant's written statement to the police was taken in accordance with his Miranda rights, was voluntary, and not the product of coercion.

Defendant complains that the police did not record the interview or statement. Significantly, he did not raise this argument at the hearing. State v. Robinson, 200 N.J. 1, 19-22 (2009). He also concedes that at the time the statement was taken, the police were not required to record it. Rule 3:17, mandating the electronic recordation of specified custodial interrogations, including homicide investigations, was not adopted until 2005; it did not become effective until January 1, 2006, for homicide offenses, and until January 1, 2007, for other specified offenses. Thus, the mere failure to record defendant's interrogation does not render his confession inadmissible. Had the issue been raised below, it would have been only one factor for the judge to consider in determining voluntariness. Cook, supra, 179 N.J. at 552. In addition, there is no reason to believe it would have been given great weight in this case because defendant made no directly incriminating statements during his custodial interrogation, and his custodial statement was consistent with the statement he had given the prior day at the hospital.

Defendant also complains that "[i]nformation was deliberately withheld as to the reason for the questioning, the fatal beating of [Julio]," and he was not advised that he was a suspect. These arguments were not raised at the hearing, Robinson, supra, 200 N.J. at 19-22. They are also not consistent with the record. At the time of the interrogation, the police did not have sufficient evidence to prove Julio's injuries were inflicted by defendant; they did not know when the injuries had been inflicted or by whom. Nevertheless, Hilongos advised defendant there was reason to believe that Julio's death was a homicide. Thus, defendant was advised the reason for the questioning, and that explanation gave him reason to believe he was a suspect. This was more than sufficient under the circumstances. State v. Nyhammer, 197 N.J. 383, 405-08 (in typical case, knowledge of one's status as a suspect is unimportant for Miranda purposes, and even where such knowledge might be useful, "failure to be told of one's suspect status still would be only one of many factors to be considered in the totality of the circumstances"), cert. denied, __ U.S. __, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009).

Defendant also complains that he was told to report to the police station for questioning, but never told he was free to leave. The first of these arguments was not raised at the hearing, State v. Robinson, supra, 200 N.J. at 19-22, and both are unsupported by the record.

Finally, defendant complains that he "was subjected to non-stop questioning for several hours." This argument was not raised below, ibid., and it presents no basis for reversal. The record reflects that defendant was at police headquarters for no more than three hours. He arrived some time between 5:00 and 5:30, and his interrogation was completed at 8:00 p.m. This is not an extreme length of time. Statements taken after much longer periods of time have been admitted. See, e.g., Diaz-Bridges, supra, ___ N.J. at ___ (slip op. at 6) (defendant questioned for nearly ten hours); State v. Knight, 183 N.J. 449, 463-70 (2005) (interrogation lasting the length of "a daytime work shift"); State v. Morton, 155 N.J. 383, 450-51 (1998) (nine and one-half hours), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Cabrera, 387 N.J. Super. 81, 98-103 (App. Div. 2006) (nine hours). Moreover, the length of the interrogation is one of many factors to consider in applying the totality of the circumstances test and determining the voluntariness of a statement. Knight, supra, 183 N.J. at 469. There is nothing in the record to suggest that the interrogation was in any way coercive or overbearing.

II

Defendant contends the trial judge erred in denying his motion for judgment of acquittal as to the charge of serious bodily injury murder because "the State failed to produce even a scintilla of proof that the defendant acted with the purposeful or knowing intent necessary to cause serious bodily injury resulting in the death of [Julio]." The trial judge denied the motion, noting that the State had produced evidence that the injuries were inflicted four to ten hours before his death, when he was in defendant's sole custody.

To sustain a conviction, the State must prove all elements of a criminal charge beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1072-73, 25 L. Ed. 2d 368, 375 (1970); State v. Hill, 199 N.J. 545, 558-59 (2009); State v. Grenci, 197 N.J. 604, 622 (2009); State v. Delibero, 149 N.J. 90, 99 (1997). This rule applies even to stipulated facts. State v. Wesner, 372 N.J. Super. 489, 493-94 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005). The burden of proof is a constitutional mandate, U.S. Const. amends V, VI; United States v. Booker, 543 U.S. 220, 230, 125 S. Ct. 738, 748, 160 L. Ed. 2d 621, 641 (2005; State v. Purnell, 161 N.J. 44, 52 (1999), that also is codified at N.J.S.A. 2C:1-13(a), which provides that: "No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed."

"On a motion for judgment of acquittal, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged." State v. D.A., 191 N.J. 158, 163 (2007); State v. Reyes, 50 N.J. 454, 458-59 (1967). "[T]he court 'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). No distinction is made between direct and circumstantial evidence. State v. Mayberry, 52 N.J. 413, 436-37 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969); Reyes, supra, 50 N.J. at 458-59. This court applies the same legal standard. State v. Moffa, 42 N.J. 258, 263 (1964).

N.J.S.A. 2C:11-3a(1) and (2) provide that criminal homicide constitutes murder when the actor purposely or knowingly "causes . . . serious bodily injury resulting in death." N.J.S.A. 2C:2-2b(1) defines "purposely" as follows:

A person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. A person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist.

 

N.J.S.A. 2C:2-2b(2) defines "knowingly" as follows:

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result.

 

In State v. Cruz, 163 N.J. 403, 418 (2000), the Court addressed the legal standard necessary to prove purposeful or knowing serious bodily injury murder as follows:

[T]to convict a defendant on a charge of purposeful, non-capital SBI murder the State must prove that the defendant's conscious object was to cause serious bodily injury that then resulted in the victim's death, knew that the injury created a substantial risk of death and that it was highly probable that death would result. To prevail on a charge of knowing non-capital SBI murder the State must prove that the defendant was aware that it was practically certain that his conduct would cause serious bodily injury that then resulted in the victim's death, knew that the injury created a substantial risk of death and that it was highly probable that death would result.

Accord State v. Wilder, 193 N.J. 398, 408-09 (2008); State v. Jenkins, 178 N.J. 347, 362-63 (2004).

In this case, the State's evidence was sufficient to prove serious bodily injury murder as set forth in Cruz. We have recounted at length the autopsy findings and the testimony of the three experts produced by the State. All agreed that the injuries were inflicted between four and ten hours before Julio's death, when he was in defendant's exclusive care. All agreed that Julio's injuries were inflicted by multiple blows to the head and body, using great force. The laceration to the kidney was especially telling as to the substantial force used against the child, as Hua explained that the organ is very well protected and difficult to injure.

The child was only two years old at the time of his death, only 35 inches tall and 25 to 35 pounds. Defendant, by contrast, was a grown man. In August 2004, he was thirty-four years old, five feet eight inches tall, and weighed approximately 180 pounds.

Finally, defendant deflected the mother's desire to seek immediate medical care. Defendant refused because "they might think I did something to him," indicating his knowledge that the multiple blows inflicted by him severely threatened the child's well-being.

It was reasonable for the jurors to conclude that by repeatedly, forcefully hitting such a small child, and refusing to seek medical care for him afterward, defendant intended to cause serious bodily injury, with death a highly probable result. That is, the circumstantial evidence supports a conclusion that: it was defendant's conscious object to cause serious bodily injury that then resulted in Julio's death, he knew that the injury created a substantial risk of death and that it was highly probable that death would result. Alternatively, the evidence demonstrated defendant was aware that it was practically certain that his conduct would cause serious bodily injury that resulted in the child's death, knew that the injury created a substantial risk of death, and that it was highly probable that death would result.

III

Defendant contends the trial judge committed plain error when, in response to a jury question, he failed to distinguish adequately serious bodily injury murder from the lesser included offenses of aggravated manslaughter and reckless manslaughter. We disagree.

The trial judge charged the jury on serious bodily injury murder, and the lesser included offenses of aggravated manslaughter and reckless manslaughter. In so doing, the judge followed the model jury charge for those offenses, reciting it nearly verbatim. Model Jury Charge (Criminal), "Murder and Aggravated/Reckless Manslaughter" (2004). As to the murder charge, however, the judge included only the language relating to serious bodily injury murder because defendant was not charged with purposefully or knowingly causing the child's death.4 The judge also omitted the model charge language relating to the use of deadly weapons, as that was not an issue presented in this case.

Defendant did not object to the charge on the ground that it was confusing or failed to adequately distinguish between serious bodily injury murder and the lesser included offenses. Upon an objection by the State, however, and with input from defense counsel, the judge clarified certain aspects of the charge.

During deliberations, the jurors requested "Count One, definition, all," and the judge responded by reading the entire charge for murder, aggravated manslaughter, and manslaughter. Defense counsel did not object. The judge issued a minor clarification based upon an objection by the prosecutor.

The jurors retired to deliberate, but returned approximately forty minutes later to ask: "Question, can we have a written copy of Count One," and "If not, can we have it read again and can we take notes?" Both defense counsel and the prosecutor agreed that the jurors should have the charge read back to them, without letting them take notes.

Defense counsel objected to the judge issuing a "parsed charge," however, because it might be causing confusion. He asked that the judge read the entire charge as set forth in the model charge, including the uncharged theory that defendant purposefully or knowingly caused Julio's death, and the theory the State charged, that defendant purposefully or knowingly caused serious bodily injury that resulted in Julio's death. The prosecutor argued that the jury should only be instructed on the charged theory of serious bodily injury murder. The trial judge adopted the State position and re-issued the charge on serious bodily injury murder, aggravated manslaughter, and reckless manslaughter. The judge did not permit the jurors to take notes. Three hours later, the jury returned a verdict of guilty on murder and endangering the welfare of a child.

In his motion for a new trial, defense counsel argued that the charge failed to differentiate adequately between serious bodily injury murder and aggravated manslaughter. The judge denied the motion, holding that the charge clearly distinguished between the two crimes.

Defendant did not make a timely objection to the charge on the ground he is now raising on appeal; therefore, we apply the plain error standard. R. 1:7-2; R. 1:7-5; R. 2:10-2; State v. R.B., 183 N.J. 308, 321-22 (2005). As explained by the Court,

plain error in the context of a jury charge is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Jordan, 147 N.J. 409, 422 (1997) (citations omitted).

 

[State v. Adams, 194 N.J. 186, 207 (2008).]

"Because of the importance of proper instructions to the right of trial by jury, erroneous instructions on matters or issues material to the jury's deliberations are presumed to be reversible error." State v. Collier, 90 N.J. 117, 122-23 (1982); State v. Eldridge, 388 N.J. Super. 485, 496 (App. Div. 2006), certif. denied, 189 N.J. 650 (2007). They are poor candidates for rehabilitation under the plain error doctrine. State v. Torres, 183 N.J.554, 564 (2005); Jordan, supra, 147 N.J. at 422.

Criminal homicide constitutes murder when the actor purposely or knowingly "causes . . . serious bodily injury resulting in death." N.J.S.A. 2C:11-3a(1), (2). In State v. Cruz, the Court required that the following charge be issued in capital cases in which the State sought conviction for serious bodily injury murder:

In order for you to find the defendant guilty of murder, the State is required to prove each of the following elements beyond a reasonable doubt:

(1) that the defendant caused the victim's death or serious bodily injury that then resulted in the victim's death, and

(2) that the defendant did so purposely or knowingly.

A person who causes another's death does so purposely when it is the person's conscious object to cause death or serious bodily injury. A person who causes another's death does so knowingly when the person is aware that it is practically certain that his conduct will cause death or serious bodily injury.

Whether the killing is committed purposely or knowingly, causing death or serious bodily injury must be within the design or contemplation of the defendant.

"Serious bodily injury" means bodily injury that creates a substantial risk of death. A substantial risk of death exists where it is highly probable that the injury will result in death.

 

All jurors do not have to agree unanimously concerning which form of murder is present so long as all believe it was one form of murder or the other. However, for a defendant to be subject to capital punishment, all jurors must agree that the defendant by his own conduct either purposely or knowingly caused death or serious bodily injury. All jurors must also agree that the defendant knew of and disregarded a substantial risk of death--that is, that it was highly probable that death would result from the infliction of serious bodily injury.

 

[163 N.J. at 419-20.]

In terms of the lesser included offenses, under N.J.S.A. 2C:11-4a(1), criminalhomicide constitutesaggravated manslaughter when "[t]he actor recklessly causes death under circumstancesmanifesting extremeindifference to humanlife . . . ." Under N.J.S.A. 2C:11-4b(1), criminal homicide constitutes manslaughter when "[it] is committed recklessly . . . ."

Aggravated manslaughter involves a lower degree of culpability than murder. To prove aggravated manslaughter, the State must show only "that the defendant was aware of and consciously disregarded a substantial risk of death, i.e., a probability that death would result, and that the defendant manifested extreme indifference to human life." Cruz, supra, 163 N.J. at 417. Accord Wilder, supra, 193 N.J. at 408-09; Jenkins, supra, 178 N.J. at 362-63.

"In assessing whether a defendant has manifested extreme indifference to human life, the focus is not on the defendant's state of mind, but on the circumstances under which the defendant acted." Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:11-4 (2010). Accord State v. Gaines, 377 N.J. Super. 612, 621 (App. Div.), certif. denied, 185 N.J. 264 (2005); State v. Curtis, 195 N.J. Super. 354, 364-65 (App. Div.), certif. denied, 99 N.J. 212 (1984).

In State v. Jenkins, the Court explained the differences between murder, aggravated manslaughter, and reckless manslaughter, stating:

[T]he following key distinctions emerge. To be guilty of SBI murder, the defendant must have knowingly or purposely inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of death and that it was "highly probable" that death would result. In aggravated manslaughter, by contrast, the defendant must have caused death with an "awareness and conscious disregard of the probability of death." If, instead, the defendant disregarded only a "possibility" of death, the result is reckless manslaughter.

 

. . . .

 

. . . [T]he proper inquiry in distinguishing murder from the two degrees of manslaughter relates to defendant's state of mind as to the risk of death.

 

[178 N.J. at 363 (internal citations omitted).]

See also Curtis, supra, 195 N.J. Super. at 363-65 (difference between aggravated manslaughter and reckless manslaughter is difference in degree of risk that death will result from the defendant's conduct--whether death is a probability or a mere possibility).

To be sure, differentiating between the three crimes is a complex endeavor. And it surely was one of the most difficult issues for the jury to resolve in this case, as it is for juries in most cases of this nature. See, e.g., State v. Ruiz, 399 N.J. Super. 86 (App. Div. 2008) (defendant acquitted of aggravated manslaughter with respect to killing of fifteen-month-old, and jury deadlocked on lesser included offense of reckless manslaughter); State v. Messino, 378 N.J. Super. 559 (App. Div.) (defendant convicted of aggravated manslaughter, not murder, with respect to killing of two-year-old), certif. denied, 185 N.J. 297 (2005). In this regard, the jurors' requests for clarification reflect their diligent efforts to reach a verdict consistent with the law and the facts as they found them; the requests are not indicative of any error or confusion in the charge issued by the trial judge.

"Appropriate and proper charges to a jury are essential to a fair trial." State v. Green, 86 N.J. 281, 287 (1981). They are most critical in criminal cases "when a person's liberty is at stake." Id. at 289.

Here, the trial judge issued instructions that tracked the relevant model jury charge and were consistent with the governing law on serious bodily injury murder, aggravated manslaughter, and reckless manslaughter, as set forth above. Using a model jury charge, as the trial judge did here, will rarely result in plain error. R.B., supra, 183 N.J. at 325; Mogull v. CB Commercial Real Estate Grp., L.P., 162 N.J. 449, 466 (2000). We find no error, much less plain error, in this instance.

IV

During the cross-examination of Leva, one of the State's experts, one of defense counsel's questions elicited information about Dr. Morgan-Glenn, a non-testifying expert. Morgan-Glenn had rendered an opinion that Julio's death was not accidental. When Leva referred to Morgan-Glenn's opinion, defense counsel objected, but the trial judge overruled the objection. On appeal, defendant contends the judge denied his right to confront this expert witness.

Consideration of this issue requires an understanding of defendant's trial strategy. At trial, defense counsel vigorously challenged the State's investigation into Julio's death. Defense counsel introduced the idea that at some point the investigation of the child's death had been suspended, suggesting that there was some question as to whether the death had been accidental or criminal. In addition, defense counsel questioned the quality of the work performed by Zaretski, the medical examiner who performed the autopsy on Julio but did not testify.

Defense counsel pursued both lines of attack during Leva's testimony. On direct examination by the prosecutor, Leva testified that he served as Vice Chairman of the Board, which "evaluate[s] all of the child fatalities in the State of New Jersey." He had reviewed Julio's case both as a member of that Board, and as an expert for the State.

In an obvious response to defense counsel's earlier cross-examination of Hua, the prosecutor elicited from Leva that the Board had written to the prosecutor regarding the case because of its disagreement with Zaretski's conclusion that Julio's internal injuries could have been caused by CPR. Leva responded the Board disagreed with Zaretski's conclusion.

During Leva's testimony on direct examination, he stated only that, in reaching his conclusion that Julio's injuries were inflicted, not accidental, he reviewed a number of reports, including one authored by Morgan-Glenn. He described Morgan-Glenn as a pediatrician practicing in the northern portion of the State, who also works with the Child Protection Center.

On cross-examination, defense counsel attempted to clarify Leva's concerns about Zaretski's conclusions, and the reasons the Board contacted the prosecutor's office about the case. He asked Leva, among other things, whether he "had information that the death was caused by natural causes," whether he had "received information at the . . . Board that [the Division of Youth & Family Services (DYFS)] had closed their file," and whether he had "receive[d] information that the investigation at the Union County Prosecutor's Office was suspended."

Continuing with that portion of the cross-examination, defense counsel specifically asked:

Q. Okay. You know, you mentioned some of the concerns that the Board felt that this was not the result of an accident. What were some of the other concerns that you had that you brought to Ms. Luvera's attention?

 

A. You'd have to read the letter.

 

Q. You don't have any specific recollection at all?

 

A. Of the concerns?

 

Q. Yeah.

 

A. Other than the fact that we believed the injuries were not consistent with the manner of death as per the medical examiner, I -- I'm hard-pressed to believe that we commented on any investigation or anything like that. I believe we also pointed out that Dr. Morgan-Glenn believed that these were --

 

Q. Could you not give the opinion of another doctor?

 

THE COURT: Overruled. You asked the question. You may answer it.

 

[DEFENSE COUNSEL]: Okay.

 

THE COURT: Okay is right. You may continue to answer the question.

 

A. I believe that we also pointed out the fact that Dr. Morgan-Glenn was convinced that these were non-accidental injuries.

[Emphasis added.]

The underlined testimony is the testimony about which defendant complains on appeal.

On re-direct, the prosecutor followed up on this aspect of the cross-examination, questioning Leva as follows:

Q. I am going to show you what's been marked as S-23 for identification and ask you if you recognize that?

 

A. Yes, I do recognize this. This was the report by the medical diagnostic team authored by Dr. Morgan-Glenn.

 

Q. And did Dr. Morgan-Glenn's report become part of your review on the Child Fatality Review Board of this particular case?

 

A. Yes, it did.

 

Q. And I'm going to direct you to Page 3 of Dr. Morgan-Glenn's report and I'm going to point to the fourth full paragraph and just ask you just to read the last sentence of that paragraph just to yourself and then I will ask you --

 

A. This one?

 

Q. This one, this last sentence to yourself.

 

A. Okay.

 

Q. Does that refresh your recollection as to what information you obtained as a member of the Board relating to DYFS, law enforcement and findings?

 

A. Yes, it does.

 

Q. And what information did you have?

 

A. "No arrests were made and the case was closed reportedly as homicide by CPR or accidental homicide (per DYFS report of law enforcement findings)."

 

. . . .

 

Q. The information came to the Board through DYFS, through law enforcement?

 

[DEFENSE COUNSEL]: Objection, Judge.

 

THE COURT: Your objection is noted. I overrule it.

 

A. Yes.

 

The prosecutor then proceeded to question Leva about the letter he and another doctor, Dr. D'Urso, had written to the Union County Prosecutor on behalf of the Board. In the letter, Leva and D'Urso noted the Board's review of statements made by defendant and the mother, as well as Zaretski's report, and Morgan-Glenn's report. Ultimately, the letter concluded: "The Board has seldom seen a case in which the gross anatomical findings, cause of death and manner of death were so obviously intentionally inflicted."

On re-cross examination, defense counsel questioned the validity of the Board's conclusion by questioning the make-up of the Board and the nature of their review. Counsel then reverted to the overriding theme of the defense, confirming with Leva the Board's disagreement with Zaretski's conclusions and its request that the investigation into Julio's death be renewed.

The following day, defendant moved for a mistrial based upon, among other things, the admission of Leva's testimony about the substance of Morgan-Glenn's opinion. The trial judge denied the motion, noting that the testimony was in response to questions posed by defense counsel, and was necessary to respond to an issue raised by the defense.

Post-trial, defendant moved for a new trial on a number of grounds, including the admission of testimony about Morgan-Glenn's conclusion. The trial judge denied the motion, stating, in pertinent part, that defense counsel had invited Leva's testimony about Morgan-Glenn's opinion by aggressively suggesting that the State had poorly investigated the case, and by prodding Leva to reveal the specifics of the Board's concerns about the investigation.

As a threshold matter, we must determine whether reference to Morgan-Glenn's opinion constitutes hearsay. It does not. Defense counsel did not offer this physician's opinion for the truth of the matter asserted. N.J.R.E. 801(c). The reference to the opinion occurred as defense counsel asked Leva to explain the concerns the Board brought to the prosecutor's attention--in effect, asking Leva to explain why the Board had written to the prosecutor. Thus, Morgan-Glenn's opinion was introduced to explain the Board's action. Clearly, defense counsel was not asking the jury to credit the truth of Morgan-Glenn's opinion. Furthermore, the references to Morgan-Glenn's opinion was not designed to bolster Leva's expert opinion. See, e.g., Agha v. Feiner, 198 N.J. 50, 62-67 (2009) (holding an expert may explain the sources on which his answers rely, including the report of a non-testifying expert); In re Commitment of E.S.T., 371 N.J. Super. 562, 571-76 (App. Div. 2004) (holding that right to confrontation was denied when reports of out-of-court experts bolstered opinions of testifying experts). A limiting instruction may have been helpful because Leva had stated on direct examination that he had considered Morgan-Glenn's report in reaching his own conclusions, Agha, supra, 198 N.J. at 63-64, but its omission cannot be considered error requiring a new trial.

Assuming the reference to Morgan-Glenn's opinion is hearsay, we must consider whether the statement was non-testimonial in nature, in which case its admissibility is governed by New Jersey's hearsay rules, State ex rel. J.A., 195 N.J. 324, 343 (2008), or whether it was testimonial in nature, in which case its admission may have violated defendant's Sixth Amendment right of confrontation. Ibid. This is so because there is no suggestion that Morgan-Glenn was unavailable to testify, and defendant had no opportunity to cross-examine her. Id. at 342-43.

The Sixth Amendment protects a criminal defendant's right "to be confronted with the witnesses against him . . . ." U.S. Const. amend. VI. "That right embodied in the Confrontation Clause expresses a preference for the in-court testimony of a witness, whose veracity can be tested by the rigors of cross-examination." J.A., supra, 195 N.J. at 342.

The Sixth Amendment does not prohibit the use of all hearsay. It prohibits only the use of "out-of-court testimonial hearsay" given by witnesses against the accused. Ibid.

In the constitutional sense, testimony is when "[a]n accuser . . . makes a formal statement to government officers." Out-of-court testimonial statements include affidavits, depositions, grand jury testimony, and "[s]tatements taken by police officers in the course of interrogations"--statements which, given the manner of their use in court, are the functional equivalent of testimony, but which have not been subjected to cross-examination . . . .

 

Thus, the Sixth Amendment requires that the admission of testimonial hearsay evidence be conditioned on the "unavailability [of the witness] and a prior opportunity for cross-examination" of that witness.

 

[Id. at 342-43 (citations omitted).]

See also Davis v. Washington, 547 U.S. 813, 821-24, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 236-38 (2006); Crawford v. Washington, 541 U.S. 36, 53-54, 68, 124 S. Ct. 1354, 1365, 1374, 158 L. Ed. 2d 177, 194, 203 (2004); State v. Basil, 202 N.J. 570, 590-605 (2010); State v. Coder, 198 N.J. 451, 463-70 (2009); State v. Buda, 195 N.J. 278, 283-84, 292-308 (2008).

Here, other than to suggest she issued her report in her capacity as a consultant to DYFS, the record is not entirely clear as to the context in which Morgan-Glenn wrote her report. Thus, we cannot determine whether her report was advisory only or "a formal statement to government officers," which when referred to at trial became "the functional equivalent of testimony." J.A., supra, 195 N.J. at 342-43. Given Morgan-Glenn's role in the investigation of any unexplained child death, the report probably was advisory only.

Assuming the report was a formal statement to police, given the context of the reference to the report in this case, the admission of the ultimate opinion of Morgan-Glenn was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967). There is no reason to believe that the jury's verdict was in any way affected by the fleeting reference to Morgan-Glenn's opinion. The record reflects three lines of testimony in a trial of approximately three weeks' duration, with seven full days of testimony from fifteen witnesses, including three expert witnesses for the State. The State's experts testified over four days as to the bases for their opinions that the child's injuries were inflicted, not accidental.

Moreover, the manner in which the testimony about Morgan-Glenn's opinion was introduced at trial raises the issues of whether the error, if any, was the product of invited error, or whether defense counsel invoked the "opening the door" doctrine and the related rule of completeness. Although we do not believe the invited error doctrine applies, the opening the door doctrine allows the other party, the State, to elicit otherwise inadmissible evidence when the other party, defense counsel, has made or tried to make unfair use of evidence. State v. James, 144 N.J. 538, 554-55 (1996).

When defense counsel asked Leva to identify "some of the other concerns that you had that you brought to [the prosecutor's] attention," he undoubtedly expected the witness to complain about the case having been closed, or about problems with Zaretski's conclusions. The witness did not answer as counsel hoped. Yet, his answer, revealing Morgan-Glenn's opinion that Julio's injuries were non-accidental, was responsive to the question posed. The questions posed by the prosecutor on re-direct examination addressed issues introduced by defense counsel, and explained prior evidence. The jury had a right to understand the complete basis for the Board's decision to communicate with the prosecutor, not simply selected information sought by defense counsel. Moreover, our review of the record demonstrates that the fleeting reference to Morgan-Glenn's opinion cannot be considered unduly prejudicial to defendant. N.J.R.E. 403.

V

Defendant contends he is entitled to a new trial based upon prosecutorial misconduct in summation. He argues that the prosecutor misstated the law of serious bodily injury murder, accused defense counsel of belittling witnesses, used a hypothetical not supported by the evidence, and appealed to the sympathy of the jury. We have reviewed the prosecutor's summation in its entirety and in context of the entire trial. None of the errors cited by defendant require reversal. In fact, except for the prosecutor's final remarks, which we agree appealed to the sympathy of the jury, the challenges are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Regarding the offending closing remarks cited by defendant, we conclude the error is harmless.

At the end of his summation, the prosecutor argued:

You will remember at the beginning of my opening I said to you a picture speaks a thousand words. [Julio]'s injuries don't lie. And the pictures lead you to one inescapable conclusion and that is that on the last day of [Julio]'s life he was in a place that he had only been to a few times. He was with a man that he barely knew, a man who is charged with protecting him, charged with taking care of him, and that man betrayed him. That man is this defendant. [Julio] spent the last day of his life being beaten by that man in what must have been indescribable pain from a large subdural hematoma in his head causing his brain to swell, from lacerated organs that caused his belly to fill with blood.

Ladies and gentlemen, it is too late in this case to help [Julio], but it is not too late for you to find the defendant responsible for his actions. When you go back into the jury room and you think about all the credible evidence, all the evidence that doesn't lie to you, you must find the defendant guilty of both the charges in the Indictment.

[Emphasis added.]

The statements about which defendant now complains are underlined. At trial, defense counsel objected to the remark about the jury not being able to save Julio, but not about the pain Julio allegedly suffered. The trial judge initially overruled the objection, finding it a close question as to whether the comment "crossed the line," but concluded that the comment did not require an instruction from him. Subsequently, the trial judge changed his ruling and instructed the jurors that they should disregard the remark.

The comment about the pain suffered by the little boy is a reasonable inference from the testimony of the State's expert witnesses about the injuries inflicted upon him and the manner in which they were likely inflicted--through punches or kicks, or having his head slammed against a hard surface. State v. Roman, 382 N.J. Super. 44, 59-60 (App. Div. 2005), certif. dismissed, 189 N.J. 420 (2007).

On the other hand, the prosecutor erred when he stated "it is too late . . . to help Julio." Prosecutors should refrain from appealing to jurors' emotions. State v. Blakney, 189 N.J. 88, 96 (2006); Roman, supra, 382 N.J. Super. at 57-58. They should not suggest that a guilty verdict is the only way justice can be served. See, e.g., State v. Wakefield, 190 N.J. 397, 457-61 (2007); Roman, supra, 382 N.J. Super. at 58; State v. Hawk, 327 N.J. Super. 276, 280-84 (App. Div. 2000). The prosecutor's final comments could have been interpreted by the jury in both fashions.

However, the trial judge issued a prompt and sufficient limiting instruction, and we presume the jury followed the judge's instruction. State v. Burns, 192 N.J. 312, 335 (2007). It is also significant that the prosecutor followed the inappropriate comment with an appropriate request that the jury reach a verdict consistent with the evidence.

The error in the prosecutor's summation was not so egregious that it deprived defendant of a fair trial. The comment came at the end of a long and undoubtedly emotionally charged trial. Defendant was entitled to a fair trial, not a perfect one. R.B., supra, 183 N.J. at 333-34.

 

 

VI

Finally, defendant contends his sentence is excessive. He argues it should be reduced to the mandatory minimum of thirty years in prison. We disagree.

Judge Heimlich sentenced defendant on the murder conviction to forty-five years with an eighty-five percent parole ineligibility term pursuant to NERA, and a concurrent eight-year term with a four-year parole ineligibility term on the endangering conviction. The judge found three aggravating factors: one, the nature and circumstances of the offense, including whether it was committed in an especially heinous, cruel, or depraved manner, N.J.S.A. 2C:44-1a(1); two, the gravity and seriousness of the harm inflicted on the victim, including whether defendant knew or reasonably should have known that the victim was particularly vulnerable or incapable of resistance due to extreme youth, N.J.S.A. 2C:44-1a(2); and nine, the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). He further found that these aggravating factors significantly outweighed the only mitigating factor, seven, that defendant has no history of prior delinquency or criminal activity, N.J.S.A. 2C:44-1b(7). The judge stated that he considered the ramifications of the base terms and the periods of parole ineligibility.

Our standard of review is limited. As explained by the Court, we must consider

first, whether the correct sentencing guidelines . . . [or] presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of the guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

 

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

See also State v. Cassady, 198 N.J. 165, 180-81 (2009); State v. Natale, 184 N.J. 458, 488-89 (2005); State v. Megargel, 143 N.J. 484, 493-94 (1996).

When the sentence imposed is within the sentencing guidelines, "[a]n appellate court is bound to affirm a sentence, even it if would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). Accord Cassady, supra, 198 N.J. at 180-81; Natale, supra, 184 N.J. at 489.

Defendant's sentences were within the ranges permitted under the law. He was convicted of murder, N.J.S.A. 2C:11-3a(1) and/or (2), for which courts have discretion to impose a sentence of "a specific term of years which shall be between 30 years and life imprisonment of which the person shall serve 30 years before being eligible for parole." N.J.S.A. 2C:11-3b(1).5 He also was convicted of endangering the welfare of a child, N.J.S.A. 2C:24-4a, a second degree offense for which courts have discretion to impose a sentence between five and ten years. N.J.S.A. 2C:43-6a(2). The parole ineligibility periods also were appropriate under N.J.S.A. 2C:43-6b and 2C:43-7.2.

Defendant's primary argument is that the trial judge erred in finding aggravating factor one because the crime was not committed in a particularly heinous, cruel, or depraved manner, and was not more serious than other crimes in its class. The judge's findings are amply supported by the evidentiary record. The record demonstrates this child was the victim of a savage beating and left to bleed to death for four to ten hours before he expired. These facts justify a finding that aggravating factor number one applied. See N.J.S.A. 2C:44-1a(1); State v. O'Donnell, supra, 117 N.J. at 217-18.

Defendant also argues that, considering the real-time consequences of his forty-five year sentence, he will be seventy-five years old before his initial eligibility for parole. He contends that a sentence of the mandatory minimum, thirty years, is more appropriate. The record reveals the trial judge considered the real-time consequences of the sentence. See N.J.S.A. 2C:44-1c(2); State v. Ramsey, 415 N.J. Super. 257, 271-72 (App. Div. 2010), certif. denied, 205 N.J. 77 (2011); State v. Marinez, 370 N.J. Super. 49, 57-59 (App. Div.), certif. denied, 182 N.J. 142 (2004). Moreover, the overall sentence does not shock the conscience, and we have identified no basis to warrant appellate intervention.

Affirmed.

 

1 N.J.S.A. 2C:43-7.2.

2 Zaretski, the medical examiner who conducted the autopsy, did not testify.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 The trial judge initially charged both types of murder, but corrected himself upon an objection by the prosecutor.

5 Defendant could have been eligible for a life sentence under N.J.S.A. 2C:11-3b(4)(k), since he committed the homicidal act by his own conduct, and the victim was under fourteen years of age. However, the jury was not asked to make a finding as to the victim's age, other than with respect to the endangering charge, that he was under sixteen years of age. N.J.S.A. 2C:24-4b(1).