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

NOT FOR PUBLICATION WITHOUT THE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.

EDWARD J. ROMAN, SR.,

Defendant-Appellant.

___________________________

June 23, 2015

Argued May 19, 2015 Decided

Before Judges Reisner and Koblitz.

On appeal from Superior Court, Law Division, Cape May County, Indictment No. 02-04-0254.

Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pierce, on the brief).

Gretchen A. Pickering, Assistant Prosecutor, argued the cause for respondent (Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, on the brief).

PER CURIAM

Defendant Edward J. Roman, Sr. appeals from a June 14, 2012 order, entered after a plenary hearing, denying his petition for post-conviction relief (PCR). Having reviewed the record, we conclude that the PCR judge's factual findings and credibility determinations are supported by the evidence, and we affirm.

I

This case has a lengthy history of which this appeal is only the most recent chapter. The essential facts were summarized in our opinion on defendant's direct appeal

Defendant and his girlfriend, Melanie Holton, were the parents of twin seven-week-old boys. Holton, the grandparents, and the babies' godfather and defendant's best friend, Michael Wilkins, all testified that defendant appeared, before the unfortunate incident to be a loving, protective, and fully involved parent of the newborns.

On September 23, 2001, however, defendant was babysitting the newborns while Holton was shopping with a friend. While the newborns were in defendant's care, Edward Jr. died. Defendant's initial version of the death, which he provided during a 9-1-1 call and thereafter at the hospital, was that Edward Jr. fell off a couch while defendant was assisting the other twin.

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.

[State v. Roman (Roman I), 382 N.J. Super. 44, 50-51 (App. Div. 2005), certif. dismissed, 189 N.J. 420 (2007).]

After telling the police at least three different versions of what happened, defendant eventually confessed to killing his son. As described in our earlier opinion: "Defendant . . . 'became very emotional and he put his hands up like this and he said I murdered my son.' Defendant then explained how he 'lost it' and 'slammed the baby in between [his] knees because he wouldn't stop crying.'" Id. at 54-55. However, "defendant denied ever striking the babies before, but admitted to having been tempted to do so in the past." Id. at 55.

After a trial in which multiple expert witnesses testified, as did defendant and various family members, the jury acquitted defendant of aggravated assault and endangering the welfare of a child, with respect to both twins. The jury also acquitted defendant of first-degree murder in the death of Edward Jr., but convicted him of aggravated manslaughter as a lesser included offense. Defendant was sentenced to twenty-seven years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On his direct appeal, we affirmed the conviction, rejecting defendant's multiple challenges including an attack on the admissibility of his confession.1 We also affirmed the sentence. Roman I, supra, 382 N.J. Super. at 50.

Defendant then filed a PCR petition, which the trial court denied without a hearing by order dated August 13, 2008. Defendant appealed from that PCR order, raising the following issues

I. THE PCR COURT ERRED IN DENYING MR. ROMAN'S PCR AS HE WAS DEPRIVED [OF] EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

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

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

C. 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.

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

E. 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.

A. 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.

B. 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.

C. 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.

A. 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.

B. 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.

With one notable exception, we rejected defendant's arguments as without merit. State v. Roman (Roman II), No. A-2199-08 (App. Div. Oct. 19, 2010) (slip op. at 9-10), certif. denied, 205 N.J. 273 (2011). In his point I(A), defendant argued that his trial counsel should have called Dr. John J. Shane, defendant's forensic pathologist, as a witness on the issue of the cause of the baby's death and the extent of his injuries. Defendant contended that Dr. Shane would have testified that the baby's death was due to improper resuscitation efforts at the hospital; his skull fracture was cause by one traumatic injury, not two as opined by the State's expert; and both twins' rib fractures occurred during childbirth. Id. at 7. Defendant further argued that the only reason his trial counsel did not call Dr. Shane as a witness was that defendant did not have the funds to pay the doctor's $2500 fee. Ibid.

We concluded that, if the jury believed Dr. Shane, his testimony could have resulted in a more favorable verdict because it "went to the very heart of the causation of the child's death." Id. at 8. We noted that defendant's right to a new trial based on alleged ineffective assistance of counsel depended on why his trial attorney did not call Dr. Shane to testify

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. 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.' 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.

[Ibid. (citations omitted).]

We agreed that, as set forth in his Point VI(A), defendant was entitled to an evidentiary hearing on that one narrow PCR issue: "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." Id. at 14.

On remand, the PCR judge held a two-day testimonial hearing, at which the State presented testimony from defendant's former trial attorney, and the defense presented testimony from Dr. Shane, defendant, his mother, and two family friends. The testimony is discussed at length in the PCR judge's comprehensive oral opinion issued on March 20, 2012, and need not be repeated here. For our purposes, it is sufficient to summarize the PCR judge's findings, which are supported by sufficient credible evidence.

The PCR judge believed the trial attorney's explanation for his decision not to call Dr. Shane as a witness. The attorney explained that, in addition to representing defendant in the criminal case, he represented him in a civil Title 9 action filed by the Division of Youth and Family Services.2 Dr. Shane testified at the Title 9 trial, and the Family Part judge did not find his testimony persuasive. The Family Part judge's written opinion, which stated myriad reasons why that judge did not find Dr. Shane to be a credible witness, was introduced in evidence at the PCR hearing. The trial attorney testified that defendant's ability to pay Dr. Shane was not an issue in his decision. Rather, he did not call Dr. Shane as a witness in the criminal trial because he did not think the jury would believe his testimony.

After hearing Dr. Shane testify at the PCR trial,3 the PCR judge found that Dr. Shane had been forced on cross-examination to concede important points helpful to the State. The judge further credited the trial attorney's testimony that, shortly before the trial, he became aware of possible inaccuracies in Dr. Shane's curriculum vitae. The judge likewise found believable the attorney's explanation that calling Dr. Shane as a witness would have involved Dr. Shane repeating for the jury the most graphic medical testimony about the baby's injuries, and the State then reinforcing that testimony through rebuttal witnesses. The attorney's view at the time was that the best defense was that whatever happened to the baby occurred by accident; additional gruesome medical testimony would not have furthered that defense.

The judge also believed the attorney's testimony that he discussed these strategic points with defendant, who agreed with the strategy. The judge noted that, in many respects, the trial attorney's strategy was successful, because the jury acquitted defendant of most of the charges, including first-degree murder.

The judge also believed the attorney's testimony that economic considerations played no part in the decision not to call Dr. Shane as a witness. The judge credited Dr. Shane's testimony that he would not have demanded his fee in advance; that testimony was corroborated by documentary evidence showing that the doctor's practice was to submit his bills after he performed the work. The judge was not persuaded by the testimony of defendant and his lay witnesses.

After finding that defense counsel did not render ineffective assistance by making a strategic decision not to call Dr. Shane as a trial witness, the judge added that he did not find it likely that, even if Dr. Shane had testified, it would have changed the outcome of the trial.

II

On this appeal, defendant presents the following points of argument for our consideration

POINT I.

DEFENSE COUNSEL'S DECISION NOT TO CALL DR. SHANE WAS MADE ON ECONOMIC GROUNDS WITHOUT CONCERN FOR TRIAL STRATEGY.

POINT II.

DEFENSE COUNSEL DID NOT MAKE AN INFORMED DECISION WHETHER TO CALL DR. SHANE AS A WITNESS BECAUSE COUNSEL FAILED TO CONSULT WITH DR. SHANE AFTER DR. BOAL'S TESTIMONY.

POINT III.

NEWLY DISCOVERED EVIDENCE IN THE FORM OF DR. SHANE'S TESTIMONY AT THE EVIDENTIARY HEARING CLEARLY SHOWS THAT THE EVIDENCE RELIED UPON BY THE STATE TO CONVICT MR. ROMAN OF AGGRAVATED MANSLAUGHTER IS SCIENTIFICALLY IMPOSSIBLE. THEREFORE, MR. ROMAN'S CONVICTION IS A MISCARRIAGE OF JUSTICE REQUIRING REVERSAL.

A. DR. SHANE'S TESTIMONY AT THE EVIDENTIARY HEARING HAS ESTABLISHED MR. ROMAN'S CLAIM OF "FUNDAMENTAL INJUSTICE," WHICH REQUIRES A REVERSAL OF CONVICTION.

Except as addressed below, defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Pursuant to the terms of our limited remand, the PCR judge's factual findings and credibility determinations are critically important. The judge's mandate was "solely" to determine whether defendant's trial attorney refrained from calling Dr. Shane as a trial expert for economic reasons or for strategic reasons. Roman II, supra, slip op. at 14. Based on the testimony that he found credible, including the testimony of defendant's former trial attorney, the PCR judge found that economics were not a factor in the attorney's decision, and the attorney decided not to call Dr. Shane as a witness for reasons of trial strategy.

Our review of the PCR judge's findings is limited to whether they are supported by sufficient credible evidence. State v. Nash, 212 N.J. 518, 540 (2013). We owe special deference to the judge's credibility determinations, because he saw and heard the witnesses testify. Ibid.; State v. Locurto, 157 N.J. 463, 474 (1999). Based on our review of the transcripts, we find no basis to disturb the judge's factual findings, which definitively answer the questions we posed in remanding this case.

Affirmed.

1 These were the direct appeal issues as noted in our opinion

[The trial judge] erred by failing to (1) suppress defendant's statement given at the hospital; (2) suppress defendant's September 26th statement given at the prosecutor's office; (3) sever the murder charge from the remaining charges of aggravated assault and endangering the welfare of Edward Jr. and Edward's twin; and (4) instruct the jury that they could not consider evidence presented in support of the aggravated assault and endangering charges as evidence of murder. . . . [A]dditional error occurred when (5) the court allowed the prosecutor to cross-examine defendant on the details of his past burglary conviction and related statement, which defendant had given to a detective; (6) the prosecutor committed misconduct from opening through summation; (7) trial counsel rendered ineffective assistance, by failing to seek severance of the charges, to seek limiting instructions regarding the charges, and to object to the prosecutor's misconduct; (8) the court allowed Dr. Lind to testify about the cause of Edward Jr.'s death; and (9) the court imposed an excessive twenty-seven-year imprisonment term.

[Roman I, supra, 382 N.J. Super. at 49-50.]

2 The agency was later renamed the Division of Child Protection and Permanency.

3 Before allowing Dr. Shane to testify, the PCR judge asked PCR defense counsel why the court should allow Dr. Shane to testify about his medical opinions, as opposed to his conversations with trial counsel about his fees. In that context, the judge referred to Dr. Shane's proposed medical testimony as "new evidence." Defense counsel responded: "It's not new evidence. It's contained within his reports." In his PCR testimony, Dr. Shane confirmed that the medical opinions he was offering were not new evidence, but were set forth in reports provided to counsel before the 2003 trial.