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                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5420-14T3





              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

repeatedly shaken.

     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.

                                     2                               A-5420-14T3

   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

                                        3                                   A-5420-14T3
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.

I'm sorry."

     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

                                           4                                    A-5420-14T3
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

                                5                           A-5420-14T3
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, 
N.J.S.A. 2C:24-4(a).

     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.

                                      6                             A-5420-14T3
     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

sequestration order.

     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

                                       7                             A-5420-14T3
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:






                                     8                                A-5420-14T3
                FOR RESENTENCING.

      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

                                           9                            A-5420-14T3
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

                                10                          A-5420-14T3
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

                                        11                              A-5420-14T3
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

v. Reeds, 
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).

                                    12                               A-5420-14T3
     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

                                        13                               A-5420-14T3
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

                                14                          A-5420-14T3
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

their credibility.

     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,

                                     15                               A-5420-14T3

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
           the Jury

     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, 
369 N.J.

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, 
279 N.J.

Super. 293, 297-98 (App. Div. 1995)). The Legislature has declared

that criminal victims and witnesses are entitled to be present at

judicial proceedings.    
N.J.S.A. 52:4B-36(p).

     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

                                 16                          A-5420-14T3
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

v. Brown, 
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

                                 17                          A-5420-14T3
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."                
N.J.S.A. 2C:11-

4(a)(1).    In contrast, a conviction for endangering the welfare

                                       18                                A-5420-14T3
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

v. Blackmon, 
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

sentence unless

          (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
          record; or

          (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)).]

                               19                            A-5420-14T3
Whether a sentence violates sentencing guidelines is a question

of law that we review de novo.        State v. Robinson, 
217 N.J. 594,

603-04 (2014).

     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

applicable guidelines.

     Moreover, in sentencing defendant, the judge considered the

aggravating and mitigating factors.        The judge found aggravating

factor two, 
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, 
N.J.S.A. 2C:44-

                                     20                              A-5420-14T3
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,    
N.J.S.A.   2C:44-1(b)(11)

(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.


                                      21                              A-5420-14T3

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