STATE OF NEW JERSEY v. M. S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M. S.,1

Defendant-Appellant.

______________________________

December 17, 2013

Submitted December 3, 2013 - Decided

Before Judges Sabatino and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-01-0018.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Ann Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant M.S. appeals the trial court's denial of her application for post-conviction relief ("PCR"). We affirm.

After a 2005 jury trial, defendant was found guilty of aggravated manslaughter, N.J.S.A. 2C:11-3a, for causing the death of her twenty-one-month-old twin son, D.S. ("Donald"). The jury also convicted defendant of two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4, with respect to both the decedent Donald and his twin brother, J.S. ("James"). The trial court sentenced defendant to a twenty-three-year custodial term on the manslaughter count, a concurrent seven-year term for endangering the welfare of Donald, and a consecutive eight-year term for endangering the welfare of James.

On direct appeal, we upheld defendant's conviction and sentence in an unpublished opinion. State v. M.S., No. A-3241-05 (App. Div. July 30, 2008). The Supreme Court denied certification in November 2008. 197 N.J. 14 (2008).

Defendant also has a third son, C.S. ("Christopher"), who was five years old at the time of Donald's death. The children had previously been removed from defendant's care by the Division of Youth and Family Services, due to what appeared to be physical abuse of her infant twins. However, after a year, the children had been returned.

Six months after the children were returned, defendant called 9-1-1 on June 4, 2003 to report that one of her twins was not breathing. The operator gave defendant instructions by phone about how to perform infant CPR until the first responder arrived.

When the first responder, Police Officer Scott Brown, arrived, he took over the CPR efforts. Shortly thereafter, paramedics arrived and continued the officer's attempt to revive the child. However, Donald was unresponsive throughout these attempts. He was declared dead shortly after he arrived at a local hospital. In addition, James was examined and found to have sustained significant recent physical trauma.

The autopsy showed that Donald had suffered severe blunt force trauma, including to his head, groin and abdomen. The trauma that caused his death was to his heart. The coroner who performed the autopsy, Dr. Raafat Ahmad, initially stated that Donald died within fifteen to twenty minutes of the trauma to his heart, but later stated that the laceration occurred within one hour before Donald died.

The State and the defense presented competing expert opinions as to the cause of death. The State's expert witnesses stated that the trauma to Donald could not have been caused by poorly delivered CPR or by blows from the five-year-old, Christopher. The defense expert, Dr. Frederick Zugibe, opined that the injury could have been from CPR that had been too forcefully delivered.

Defendant filed a PCR petition with the trial court in December 2008. She argued that she had been unconstitutionally deprived of the effective assistance of her trial counsel. Among other things2, she argued that her lawyer had been ineffective because he allegedly did not highlight certain proofs relating to the time of death to the jury in his closing argument. As part of this claim, defendant notes that the proofs showed that she called 9-1-1 at 8:16 p.m. There were sounds on the 9-1-1 recording that could have been a child moaning, which defendant claimed was consistent with her theory that the child was still alive at that time. The child was pronounced dead at the hospital at 9:24 p.m. Defendant asserts that if her attorney had more effectively emphasized these time lines in his summation, she would have been acquitted.

The PCR judge3, Hon. Thomas M. Brown, rejected defendant's argument and denied the petition. Among other things, Judge Brown noted that counsel's version of the facts was not to be considered as testimony, and that the jurors instead must rely on their memory of the facts and testimony of the various medical experts. Judge Brown discerned nothing in the record to suggest that if defense counsel had highlighted the timing issue better to the jury, the verdict would have been different. The judge found no need to hold an evidentiary hearing with testimony from defendant's trial counsel.

In her present appeal, defendant raises a single argument:

THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CLAIM OF TRIAL COUNSEL'S INEFFECTIVE JURY SUMMATION.

Our review is guided by several well-established principles. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in her defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

In reviewing such ineffectiveness claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[C]omplaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . [.]" Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963), overruled on other grounds by, State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991). "'[A]n otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting State v. Castagna, 187 N.J. 293, 314 (2006)).

Having reviewed the record in light of these standards, we are satisfied that Judge Brown correctly dismissed defendant's PCR petition. For one thing, we note that her trial counsel presented an extensive and impassioned closing argument, which attacked the State's theory of the case directly and forcefully. The summation pointed out that Dr. Ahmad had rendered three separate versions of the timing of Donald's death, which "shot" her credibility as a witness. Defense counsel also stressed that Dr. Zugibe, the defense expert, had testified that Donald was unconscious within minutes of injury and had died within ten minutes of receiving the blow. Defense counsel also reminded the jurors that the 9-1-1 call had been made at 8:16 p.m. and that a moaning sound had been heard at approximately 8:17 or 8:18 p.m. All of these points were reasonably designed to drive home the defense theme that the child died as a result of the efforts to administer CPR.

Even assuming, for the sake of discussion, that defense counsel could have said more to underscore the relevant time lines and testimony, we agree with Judge Brown that defendant has failed to demonstrate that counsel was professionally deficient or that any alleged deficiency was likely to have caused her actual prejudice.

The points that a criminal defense attorney chooses to make and emphasize during a closing argument are classic "matters of trial strategy." Williams, supra, 39 N.J. at 489. There is no reason to believe that defense counsel's alleged failure to include, in essence, a few more sentences in his lengthy summation highlighting the timing proofs would meet either prong of the Strickland test.

Lastly, there was no need for the PCR judge to conduct an evidentiary hearing to delve into trial counsel's manifestly strategic choices. State v. Preciose, 129 N.J. 451, 462 (1992).

1 Because defendant was convicted of endangering the welfare of her two sons, we use initials for defendant and fictitious names for the children to protect their identities. See N.J.S.A. 2A:82-46.

2 We need not address the other arguments raised in the petition, as they have not been advanced on this appeal.

3 The judge who presided over the trial has since retired.