NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-5420-14T3
STATE OF NEW JERSEY,
MICHELLE HEALE a/k/a
Submitted November 14, 2017 – Decided January 3, 2018
Before Judges Hoffman, Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
Steven Hernandez, attorney for appellant
(Thomas Cannavo, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Lisa
Sarnoff Gochman, Legal Assistant, on the
This case arises out of the tragic death of a young child.
On August 28, 2012, the child was in the care of defendant,
Michelle Heale, when she called 911 to report that the child was
having difficulty breathing. Responding emergency medical
personnel rushed the child to a hospital, but three days later,
the child was pronounced dead. Several doctors who examined the
child opined that the child died as a result of blunt cerebral
trauma and spinal shock, consistent with the child having been
A jury convicted defendant of first-degree aggravated
N.J.S.A. 2C:11-4(a), as a lesser-included offense
of murder, and second-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a). On the aggravated manslaughter conviction,
defendant was sentenced to fifteen years in prison with eighty-
five percent of that time ineligible for parole as prescribed by
the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. On her
conviction for endangering the welfare of a child, defendant was
sentenced to six years in prison to run concurrent with her
sentence for aggravated manslaughter. Defendant appeals her
convictions and sentence. We affirm because the evidence at trial
supports the convictions and none of the arguments raised by
defendant establish reversible error. Moreover, the sentence was
legal and we discern no abuse of discretion.
Defendant was the caregiver to the fourteen-month-old child.
The child's parents were friends with defendant and her husband,
and the child's father and defendant's husband worked together.
The child was born in June 2011, and thereafter the mother
went back to work, initially part-time and later full-time.
Defendant was staying at home with her twin children who were
approximately eighteen months older than the child. Defendant
agreed to babysit the child several days a week. Typically, the
mother would drop the child off at defendant's home around 8:00
a.m., and pick the child up on her way home from work in the late
afternoon. Thus, the child would be with defendant and her two
children for most of the day, which usually involved breakfast,
play-time, lunch, and a nap.
On August 27, 2012, the child had a cough and after his mother
picked him up from defendant, she took him to his pediatrician.
The pediatrician examined the child and diagnosed him with an
upper respiratory infection and a left ear infection, and
prescribed Amoxicillin, an oral antibiotic.
The following day, August 28, 2012, the child was dropped off
at defendant's home in the morning. Defendant, who testified at
trial, stated that the child seemed tired. In the early afternoon,
she put the child down for a nap in the master bedroom. The child
did not eat his lunch and defendant gave him a packet of squeezable
apple sauce. Thereafter, defendant heard the child coughing and
she thought the child might be choking on the apple sauce. She
picked the child up, put him over her shoulder, and hit him on his
back. Defendant testified that as she was putting the child down,
his head snapped back, and he went completely limp. Defendant
then ran down the hallway with the child and called 911 from a
phone in the living room.
A police officer and, shortly thereafter, an emergency
medical technician (EMT) responded to defendant's home. Defendant
informed both the officer and the EMT that the child had choked.
The child was then taken by ambulance to Community Medical Center.
There, the child was examined by a doctor who ordered a CT scan
and several other tests.
The child's parents and paternal grandmother came to the
medical center, as did defendant. The paternal grandmother
testified that while there, she saw defendant at the child's
bedside and heard defendant say to the child "it was my fault.
Subsequently, the parents decided to transfer the child to
the Children's Hospital of Philadelphia (CHOP). At CHOP, the
child was examined and treated by several doctors, who ordered
additional tests, x-rays, and scans. The doctors found no
indications of choking. Thus, one of the doctors asked the
Suspected Child Abuse and Neglect (SCAN) team to examine the child.
A doctor with SCAN reviewed the child's medical records, consulted
with other doctors, and came to the opinion that the child had
suffered abusive head trauma and an injury to his upper spinal
Several other doctors at CHOP also evaluated the child, and
reviewed an additional CT scan that showed significant brain
damage. Those doctors also opined that the child had suffered
abusive head trauma caused by repeated banging of the child's
brain against the inside of his skull.
Between August 28 and September 1, 2012, the child's condition
deteriorated. On September 1, 2012, the child was declared legally
brain dead and his parents authorized the donation of his viable
Following the child's death, a medical examiner conducted an
autopsy and consulted with other medical experts. The medical
examiner concluded that the cause of the child's death was blunt
cerebral trauma. The medical examiner also removed the child's
brain and spinal cord and sent them to a doctor with an expertise
in pediatric neuropathology. That expert, who had diagnosed
several hundred cases of suspected child abuse, concluded that the
child had suffered spinal shock due to an acute injury to the
upper spinal cord. That doctor also opined that the child had
"most likely" been shaken several times.
In November 2012, defendant was arrested and charged with the
murder of the child. Thereafter, a grand jury indicted defendant
for first-degree murder,
N.J.S.A. 2C:11-3a(2), and second-degree
endangering the welfare of a child,
The case was tried before a jury in March and April 2015.
Pre-trial, the court ordered the sequestration of witnesses.
Defendant made a request to restrict where the parents of the
child could sit in the courtroom, arguing that the parents should
not be allowed to sit near the jury. The trial judge denied that
application, noting that the courtroom was open and that people
could sit anywhere they wanted.
During the State's case-in-chief, it called twenty witnesses,
including members of the child's family, treating physicians, law
enforcement officers, an EMT, and medical examiners. The jury
heard testimony from seven different doctors and medical experts
presented by the State, all of whom had examined the child or the
child's medical records. All of those doctors and medical experts
opined that the child suffered blunt cerebral trauma consistent
with the child having been repeatedly shaken. Several of those
doctors also opined that the injuries the child suffered could not
have been caused by choking.
At the close of the State's case, defendant moved for
judgments of acquittal. The trial court denied that motion. The
defense then called five witnesses, including defendant and four
At the close of defendant's case, the State sought to offer
rebuttal testimony from three witnesses, two of whom were law
enforcement personnel and one of whom was a medical expert.
Defendant objected because those witnesses had been present in the
courtroom during defendant's case, and were given transcripts of
defense witnesses' testimony. The trial court entered an order
precluding the three witnesses from testifying in rebuttal because
such testimony was inconsistent with the court's earlier witness
The State applied to us for emergent relief. We granted that
application, affirmed the preclusion of the rebuttal testimony
from the two fact witnesses, but reversed the preclusion of
rebuttal testimony from the expert witness. We also expressly
stated that our order "applie[d] to these three witnesses only."
Thereafter, the State decided that it would not offer rebuttal
testimony from the original expert it identified. Instead, the
State sought to offer rebuttal testimony from three other medical
experts and the child's mother. The trial court conducted a Rule
104 hearing outside the presence of the jury. The court then
ruled that the State could offer limited rebuttal testimony from
those four witnesses.
After hearing all of the evidence, the jury acquitted
defendant of first-degree murder, but found her guilty of the
lesser-included offense of aggravated manslaughter. The jury also
found defendant guilty of endangering the welfare of a child.
On appeal, defendant presents six arguments, which she
articulates as follows:
POINT I – DEFENDANT WAS DENIED A FAIR TRIAL
GIVEN THE PREJUDICIAL VIOLATION OF THE
SEQUESTRATION ORDER ALLOWING THE REBUTTAL
TESTIMONY OF STATE WITNESSES.
POINT II – THE MULTI-FACETED, EGREGIOUS
PROSECUTORIAL MISCONDUCT DENIED DEFENDANT DUE
PROCESS AND A FAIR TRIAL.
POINT III – THE COURT BELOW ERRED IN REJECTING
DEFENDANT'S REQUEST TO REQUIRE THE VICTIM'S
PARENTS TO SIT FURTHER AWAY FROM THE JURY.
THUS, DEFENDANT WAS DEPRIVED OF A FAIR TRIAL.
POINT IV – THE CUMULATIVE ERRORS BY THE COURT
AND PROSECUTOR VIOLATED DEFENDANT'S
CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND
CONSTITUTE REVERSIBLE ERROR.
POINT V – THE SENTENCE IS ILLEGAL BECAUSE THE
COURT FAILED TO MERGE THE ENDANGERING INTO THE
AGGRAVATED MANSLAUGHTER CONVICTION AND
VIOLATES DOUBLE JEOPARDY PRINCIPLES. THUS, THE
SENTENCE MUST BE CORRECTED.
POINT VI – THE SENTENCE BELOW IS EXCESSIVE AND
SHOULD BE LOWERED BY THIS COURT OR REMANDED
Having reviewed the record in light of the applicable law,
we discern no grounds warranting reversal of the jury verdict or
sentence. We address each of defendant's arguments in turn.
A. The State's Rebuttal Witnesses
Defendant argues that the trial court erred in permitting the
State to present four witnesses to testify in rebuttal.
Specifically, defendant contends that the rebuttal testimony of
the child's mother and the three doctors violated her
constitutional right to a fair trial because the rebuttal witnesses
had been present during defendant's case or had been provided with
transcripts of the testimony of defendant's witnesses in violation
of the sequestration order.
Trial courts have discretion to order the sequestration of
witnesses. State v. Miller,
299 N.J. Super. 387, 399 (App. Div.
1997). Under N.J.R.E. 615, "[a]t the request of a party or on the
court's own motion, the court may, in accordance with law, enter
an order sequestering witnesses." The purpose of sequestration
is to prevent prospective witnesses from hearing other witnesses
testify so that a witness' testimony is not shaped or tailored by
another witness' testimony. State v. Williams,
404 N.J. Super.
147, 160 (App. Div. 2008). A witness who violates a sequestration
order may be barred from giving testimony at trial. State v.
292 N.J. Super. 76, 89 (App. Div. 1996). Nevertheless,
"[a]bsent a clear showing of prejudice[,] an inadvertent violation
of a sequestration order does not trigger automatic exclusion of
the witness' testimony." Williams,
404 N.J. Super. at 160.
Here, the State initially sought to offer rebuttal testimony
from three witnesses. Two of those witnesses were law enforcement
officers who had investigated the child's death, and the third
witness was another medical expert. Defendant objected, and the
trial court precluded testimony from all three of the State's
proposed rebuttal witnesses.
The State filed an emergent application to appeal that ruling,
which we granted. We then issued an order affirming the preclusion
of rebuttal testimony by the fact witnesses, but reversing the
preclusion of rebuttal testimony by the expert witness. As
previously noted, we expressly limited our order to those three
Thereafter, the State decided not to call the expert it had
originally identified. Instead, the State proposed to offer
rebuttal testimony from the child's mother and three other experts.
The court conducted a Rule 104 hearing and ultimately allowed
limited rebuttal testimony from each of those four witnesses. With
regard to the child's mother, the court limited her rebuttal
testimony to disputing a conversation that defendant testified had
taken place. The experts' testimony was limited to rebutting
testimony offered by defense experts.
Initially, we clarify that our April 13, 2013 order does not
control the issue on this appeal. In issuing that order, we
expressly stated that we were only addressing the three proposed
rebuttal witnesses who had been identified at that time.
Accordingly, our order did not address proposed testimony from
expert witnesses in general.
We also need not decide whether a sequestration order can
properly apply to expert witnesses. Here, the trial court made
it clear that all witnesses, including expert witnesses, were
subject to the sequestration order. No one is challenging that
order on this appeal. Instead, the limited question is whether
the court properly permitted rebuttal testimony.
Trial courts are vested with broad discretion to allow
rebuttal testimony, which will not be disturbed absent a gross
abuse of discretion. State v. Cook,
330 N.J. Super. 395, 418
(App. Div. 2000). Here, we find no such abuse. The mother was
allowed to give limited rebuttal testimony that directly
challenged testimony presented by defendant. Defendant testified
that she and the mother had a conversation in early August 2012,
during which defendant told the mother that she was "blessed with
twins." In rebuttal, the mother denied that such a conversation
ever took place. The trial court permitted the mother's rebuttal
testimony, reasoning that it did not frustrate the purpose of the
sequestration order. We agree. The limited rebuttal testimony
from the mother directly challenged testimony from defendant.
Accordingly, the mother was not tailoring her testimony based on
other witnesses' testimony; rather, the mother was directly
rebutting defendant's testimony.
Similarly, the three experts who testified in rebuttal for
the State responded to testimony from defendant's expert
witnesses. One of the rebuttal experts had previously testified
in the State's case-in-chief. The other two experts had not
testified, but had produced reports. Consequently, the experts
were not tailoring their testimony. Instead, they were responding
to and rebutting testimony from defendant's experts. In the
context of this trial, which involved testimony from numerous
experts, the trial court did not abuse its discretion by allowing
limited rebuttal testimony. Moreover, such limited rebuttal
testimony did not have the clear capacity of producing an unjust
result. See R. 2:10-2 (defining harmless error); see also State
197 N.J. 280, 298 (2009) (stating that appellate courts
will ignore an error unless it is of such a nature as to have been
clearly capable of producing an unjust result).
B. Alleged Misconduct by the Prosecutor
Defendant contends that the prosecutor engaged in misconduct
during her closing arguments and that the misconduct warrants
reversal of the jury verdict. When considering such an argument,
we first determine whether misconduct occurred and, if so, whether
it deprived the defendant of a fair trial. State v. Wakefield,
190 N.J. 397, 446 (2007); State v. Frost,
158 N.J. 76, 83 (1999).
"[A] prosecutor must refrain from improper methods that
result in wrongful conviction[s], and is obligated to use
legitimate means to bring about a just conviction." State v.
196 N.J. 23, 43 (2008) (quoting State v. Jenewicz,
193 N.J. 440, 471 (2008)). Nevertheless, "[p]rosecutors are afforded
considerable leeway in their closing arguments as long as their
comments are reasonably related to the scope of the evidence
presented." State v. Neal,
361 N.J. Super. 522, 534-35 (App. Div.
"In determining whether a prosecutor's misconduct was
sufficiently egregious [to warrant a new trial], an appellate
court must take into account the tenor of the trial and degree of
responsiveness of both counsel and the court to improprieties when
they occurred." Frost,
158 N.J. at 83. In the absence of
objections by defense counsel, a reviewing court will not reverse
unless the prosecutor's misconduct "so grievously affect[ed] the
substantial rights of the defendant as to convince [the court]
that [the misconduct] possessed a clear capacity to bring about
an unjust result." State v. Sherman,
230 N.J. Super. 10, 18-19
(App. Div. 1988) (quoting State v. Hipplewith,
33 N.J. 300, 309
Here, defendant raises six separate instances of alleged
prosecutorial misconduct. First, she contends that the prosecutor
attempted to divert the jury's attention from the evidence by
appealing to the jury's sense of outrage. In support of that
position, she identifies two statements made by the prosecutor in
closing arguments: (1) "We're here for justice for [the child]";
and (2) "[this is the child's] day now in court for you to decide."
Second, she contends that the prosecutor expressed a personal
belief of defendant's guilt by arguing that defendant's theory of
the case was "impossible" and by stating "we know that spinal
shock caused [the child's] death. We know it." Third, she
contends that the prosecutor improperly referred to God, when in
closing arguments she stated, "How in God's name do you know where
it happened? How in God's name . . . ?" Fourth, defendant
contends that the prosecutor made an inaccurate factual assertion
by stating that an officer testified that there was no dog in the
bedroom and, therefore, defendant lied when she said there was a
dog in the bedroom. Fifth, defendant contends that the prosecutor
improperly suggested that defendant should have confessed when she
argued that defendant was "not taking responsibility for
herself[.]" Finally, defendant argues that the prosecutor
improperly attacked defendant's expert witnesses and questioned
At trial, defense counsel only objected to the prosecutor's
alleged inaccurate reference to the officer's testimony regarding
the dog. The judge overruled that objection. We discern no clear
showing of prosecutorial misconduct. At best, there was a dispute
as to the officer's testimony and whether he ever mentioned a dog.
After defendant's counsel objected and there was a sidebar, the
prosecutor reminded the jury that it was their recollection of the
witnesses' testimony that controlled. Reviewed in context, the
prosecutor's statements regarding what the detective saw in the
bedroom did not rise to the level of reversible error.
Having reviewed all of the other statements made by the
prosecutor in the full context of the closing argument, we find
no showing of misconduct. Instead, the prosecutor's arguments in
closing, when read in context, did not overstep the bounds of a
fair closing argument. Moreover, as this alleged misconduct was
not objected to, there was no showing of plain error. R. 2:10-2.
In other words, the alleged misconduct by the prosecutor was not
clearly capable of producing an unjust result. State v. Black,
380 N.J. Super. 581, 592 (App. Div. 2005) (explaining that we
review statements made in summation to which there is no objection
for plain error).
C. Request That the Child's Parents Not Sit Near
Before trial, defense counsel asked the trial court to limit
where the parents of the child would be permitted to sit in the
courtroom. Defendant argued that it would be unfair to allow the
parents to sit near the jury. The trial court rejected that
The trial court has the authority and responsibility to
control the courtroom during a trial. State v. Cusumano,
Super. 305, 311 (App. Div. 2004). Accordingly, trial judges have
discretion to determine who may enter the courtroom and where
individuals may sit. That exercise of discretion is circumscribed
by the responsibility to act reasonably and within constitutional
and statutory bounds. Ibid. (citing Ryslik v. Krass,
Super. 293, 297-98 (App. Div. 1995)). The Legislature has declared
that criminal victims and witnesses are entitled to be present at
Here, we discern no abuse of discretion in the trial court's
decision not to restrict where the parents could be seated within
the courtroom. Just as critically, defendant has made no showing
that there was any improper conduct by the parents when they were
in the courtroom.
D. Alleged Cumulative Errors
Defendant argues that the cumulative effect of the various
errors she has identified warrants the reversal of the jury
verdict. In assessing such an argument, the question is whether
the cumulative effect casts sufficient doubt on a verdict to
require reversal. Jenewicz,
193 N.J. at 473. We have already
analyzed that the individual errors did not warrant reversal of
the jury verdict and there has been no showing that the cumulative
effect of the errors was sufficient to cast doubt on the jury
verdict. Instead, the trial record establishes that defendant was
accorded a fair trial.
E. Merger of the Convictions
Defendant argues that her conviction for endangering the
welfare of a child should have merged into her conviction for
aggravated manslaughter. We disagree.
A defendant who has been convicted of one offense cannot,
under principles of merger, be punished as if convicted of two
offenses. State v. Hill,
182 N.J. 532, 542 (2005) (citing State
138 N.J. 481, 561 (1994)). In determining whether
convictions merge, courts consider the elements of the crimes, the
Legislature's intent in creating the offenses, and the specific
facts of each case. Ibid. Moreover, the merger analysis is guided
by the principle that "the Legislature may fractionalize a single
criminal episode into separate offenses when the Legislature
intends them to be punished separately and when the
fractionalization does not offend constitutional principles." Id.
at 543 (quoting State v. Mirault,
92 N.J. 492, 504 (1983)).
Defendant argues that her convictions merge because the
conviction of endangering the welfare of a child was based on the
same evidence as the manslaughter conviction. Our Supreme Court
has explained, however, that endangering the welfare of a child
is aimed not only at the specific conduct, but also at violations
of the duty owed by a responsible person to care for a child.
State v. Miller,
108 N.J. 112, 118-21 (1987). Accordingly, in
Miller, the Court held that the convictions for aggravated sexual
assault and endangering the welfare of a child, which were based
on the "same general conduct," did not merge. Id. at 120.
Applying the holding in Miller to the facts of this case
dictates that defendant's conviction for endangering the welfare
of a child does not merge with her conviction for aggravated
manslaughter. A person is guilty of aggravated manslaughter if
that person "recklessly causes death under circumstances
manifesting extreme indifference to human life."
4(a)(1). In contrast, a conviction for endangering the welfare
of a child "is aimed not only at specific conduct but also at the
violation of the duty that [a caregiver] owes to a child." Miller,
108 N.J. at 118. Accordingly, a conviction for endangering the
welfare of a child requires both proof of the act that recklessly
endangered the child, and proof of a custodial relationship between
the caregiver and the child. Ibid.; see
N.J.S.A. 2C:24-4(a) and
N.J.S.A. 9:6-8.21(c). Consequently, we find no error in the
sentencing court's decision to not merge defendant's convictions.
F. Whether the Sentence Was Excessive
Finally, defendant argues that her sentences were excessive.
We review sentencing decisions for an abuse of discretion. State
202 N.J. 283, 297 (2010). "The reviewing court must
not substitute its judgment for that of the sentencing court."
State v. Fuentes,
217 N.J. 57, 70 (2014). We will affirm a
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
(3) 'the application of the guidelines to the
facts of [the] case makes the sentence clearly
unreasonable so as to shock the judicial
[Ibid. (alterations in original) (quoting
State v. Roth,
95 N.J. 334, 364-65 (1984)).]
Whether a sentence violates sentencing guidelines is a question
of law that we review de novo. State v. Robinson,
217 N.J. 594,
Here, defendant was sentenced to fifteen years in prison with
eighty-five percent of that time ineligible for parole for her
conviction for aggravated manslaughter. Defendant was then
sentenced to a concurrent term of six years in prison for her
conviction for endangering the welfare of a child. The aggravated
manslaughter conviction was a first-degree conviction and the
statute called for a prison term between ten and thirty years.
N.J.S.A. 2C:11-4(c). Moreover, NERA mandates that a defendant
convicted of aggravated manslaughter must serve eighty-five
percent of the imposed sentence without eligibility for parole.
N.J.S.A. 2C:43-7.2. The endangering the welfare of a child
conviction was a second-degree crime subject to a prison term
between five and ten years.
N.J.S.A. 2C:24-4(a) and
2C:43-6(a)(2). Accordingly, defendant was sentenced within the
Moreover, in sentencing defendant, the judge considered the
aggravating and mitigating factors. The judge found aggravating
N.J.S.A. 2C:44-1(a)(2) (the gravity and seriousness
of the harm inflicted on the victim, particularly when the victim
was vulnerable or incapable of resistance), three,
1(a)(3) (the risk that defendant will commit another offense), and
N.J.S.A. 2C:44-1(a)(9) (the need to deter). The judge
identified the facts supporting each of those aggravating factors,
and those facts are based on substantial credible evidence in the
With respect to mitigating factors, the sentencing judge
found factors seven,
N.J.S.A. 2C:44-1(b)(7) (defendant had no
prior criminal history), and eleven,
(defendant's imprisonment would entail excessive hardship to her
children). The court then identified the facts supporting those
mitigating factors. The court also considered, but rejected,
other mitigating factors argued by defendant. Finally, the court
balanced the aggravating and mitigating factors and found that the
mitigating factors slightly outweighed the aggravating factors.
Those determinations were supported by substantial credible
evidence. Consequently, we find no abuse of discretion in the
sentences imposed on defendant.
In summary, having considered all of the arguments put forward
by defendant, we affirm the convictions and sentence.