STATE OF NEW JERSEY v. MEREDITH N. ROGERS

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3295-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

MEREDITH N. ROGERS,

Defendant-Appellant.
_________________________

Submitted October 27, 2020 – Decided December 16, 2020

Before Judges Gilson and Moynihan.

On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 09-03-
0291.

Joseph E. Krakora, Public Defender, attorney for
appellant (Andrew R. Burroughs, Designated Counsel,
on the briefs).

Scott A. Coffina, Burlington County Prosecutor,
attorney for respondent (Nicole Handy, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
On November 25, 2008, D.C., a seventeen-month-old child, died and

medical doctors later testified at trial that his death was caused by blunt force

trauma consistent with being violently shaken and struck. 1 A jury convicted

defendant Meredith Rogers of first-degree aggravated manslaughter, 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). Defendant was

sentenced to forty-seven years in prison with a period of parole ineligibility as

prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant challenges his convictions, contending that errors during the

proceedings deprived him of a fair trial. He also challenges his sentence,

arguing it was excessive. We reject both these arguments and affirm.

The facts were established at a trial where the State called twelve

witnesses, including D.C.'s mother, a friend of defendant, law enforcement

personnel, several treating doctors, and two medical experts. After his motion

for acquittal was denied, defendant elected to testify, but he did not call any

experts or other witnesses.

1
We use initials for the victim and fictitious names for certain witnesses to
protect the privacy interests of the victim's family and the witnesses.
A-3295-10T3
2
At the time of D.C.'s death, his mother – C.D. (Cathy) – was dating

defendant. Defendant would often spend the night at Cathy's apartment where

she lived with D.C. and two of her daughters.

On November 24, 2008, Cathy left D.C. in defendant's care while she went

to work, and her daughters were at school. When Cathy came home later that

day, she saw defendant sitting on the couch with D.C., who had an ice pack on

his head. Cathy observed bruises on D.C.'s forehead and face. Defendant told

Cathy that D.C. had fallen down the stairs.

Cathy took D.C. to a hospital where Dr. Lisa Liner examined D.C. Dr.

Liner testified that she conducted complete physical and neurological

examinations of D.C. She observed that D.C. had a hematoma on the right side

of his head, some bruising on his face and left ear, but no neurological

abnormalities. Dr. Liner also ordered a CAT scan and the result showed no

fractures, bleeding, or brain injury. Accordingly, Dr. Liner informed Cathy that

D.C. was fine, and she discharged him from the hospital.

After visiting D.C.'s father, Cathy and D.C. returned home. At

approximately 8:30 that evening, Cathy put D.C. to bed. Approximately two

hours later, at 10:30 p.m., Cathy and defendant went into her bedroom, where

they engaged in sexual intercourse. Defendant then went down to the kitchen to

A-3295-10T3
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get some food. When he came back to the bedroom, he asked Cathy if D.C.

could sleep with them and he brought D.C. into the room. While defendant and

D.C. were eating chips and watching television, Cathy fell asleep.

Shortly thereafter, Cathy was awoken by defendant telling her that the

baby was not moving. Cathy got up and saw that D.C. was not moving, his skin

appeared grayish, his eyes were half open, and his limbs were limp at his side.

Cathy placed her hands under D.C.'s back and attempted to shake him and told

him to "stop playing." When D.C. remained unresponsive, Cathy asked

defendant to call 911.

At approximately 12:40 a.m. on November 25, 2008, several police

officers responded to Cathy's home. The officers found D.C. unresponsive; he

had no pulse and was not breathing. One of the officers observed an odor of

alcohol coming from defendant's mouth and saw alcohol containers on the

counter. D.C. was then transported to the hospital by an ambulance.

Dr. Shonola DaSilva testified that she examined D.C. on the morning of

November 25, 2008 at the hospital. She observed that D.C. had bruises on his

abdomen and face and that he was unable to move parts of his body and could

not speak. A CAT scan was conducted, and x-rays were taken of D.C.'s head,

chest, and abdomen. Dr. DaSilva observed that D.C. was bleeding internally in

A-3295-10T3
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different parts of his head. Dr. DaSilva thereafter reviewed the CAT scan taken

the prior day and did not observe that same bleeding. Dr. DaSilva opined that

D.C. had multiple intracranial bleeds caused by trauma. At approximately 11

a.m. on November 25, 2008, doctors informed Cathy that D.C. was dead.

Thereafter, Dr. Liner was shown pictures of D.C. that were taken from the

autopsy. Dr. Liner testified that the picture showed many more bruises than

when she examined D.C. the day before his death. Dr. Liner pointed out that

there were additional bruises on D.C.'s face, under his chin and cheek, and on

his abdomen.

Cathy continued to date defendant for several months after D.C.'s death.

She testified that in December 2008, defendant contacted her late one night and

asked her to pick him up in Philadelphia. When she went to get defendant, he

appeared to have been physically assaulted because he had blood coming down

his face and a "busted" lip. After Cathy brought defendant back to her home, he

told her he "knows how D.C. feels now." Thereafter, Cathy ended her

relationship with defendant.

At trial, the State also called S.F. (Sam), who was a friend of defendant.

While incarcerated on an unrelated charge, Sam had requested to speak to a

detective to provide information concerning defendant. Sam testified that after

A-3295-10T3
5
D.C.'s death, he had spoken with defendant on several occasions. According to

Sam, defendant stated that he was "stressed out" about the situation and

eventually confessed that he was drinking and under the influence of narcotics

on the night before D.C.'s death. Defendant then stated that he had grabbed D.C.

to stop him from crying, but when D.C. would not stop, defendant "blacked out"

and punched and shook the baby. Defendant then told Sam that as D.C.

continued to cry, defendant hit him until D.C. became unresponsive.

The State also called two medical experts: Dr. Lucy Rorke-Adams, a

neuropathologist, and Dr. Ian Hood, the Burlington County Chief Medical

Examiner. Dr. Rorke-Adams examined D.C.'s brain, spinal cord, and eyes. She

detailed the numerous injuries she observed to D.C.'s brain, including fractured

corpus callosum fibers, various hemorrhages, and evidence of oxygen

deprivation. Dr. Rorke-Adams opined that D.C.'s injuries were not consistent

with those suffered by a child who fell down steps. Instead, she opined that the

injuries D.C. sustained would require angular acceleration, as when a child is

shaken, causing the brain to rotate. She also opined that it would have taken a

very strong level of force to cause the injuries that she observed in D.C.'s brain.

Dr. Rorke-Adams also found that D.C.'s right eye showed extensive

hemorrhaging in front of, behind, and in the retina. She described the injuries

A-3295-10T3
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as "very characteristic of child abuse," and again explained that those injuries

would require violent shaking of the child.

Dr. Hood testified as an expert in forensic pathology. He opined that

D.C.'s injuries were not consistent with a child falling down stairs. He observed

a knuckle pattern on the infant's face and explained those injuries were caused

by blunt force trauma. Dr. Hood went on to opine that the bruises on D.C.'s

buttocks were caused by fairly forceful and discrete blunt trauma. He observed

that the child had either been hit with a relatively small object or had been

thrown against an object that would make those kinds of bruises. Dr. Hood also

opined that the child's bruises could have only been caused by trauma. In that

regard, Dr. Hood opined that D.C. had been shaken and that the cause of his

death was closed head injury and spinal cord trauma. Ultimately, Dr. Hood

opined that the child's death was a homicide.

At the close of the State's case, defendant moved for an acquittal. The

court denied that motion and defendant elected to testify. Defendant testified

that D.C. fell down stairs on November 24, 2008. Defendant went on to testify

that as he was going to sleep later that night, he noticed that D.C. was not

moving. He stated that he never shook the infant or hurt him in any way.

A-3295-10T3
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After hearing the testimony and considering the evidence, a jury convicted

defendant of first-degree aggravated manslaughter and second-degree

endangering the welfare of a child. At his sentencing, which took place in

January 2011, the State argued that the court should sentence defendant as a

persistent offender in accordance with N.J.S.A. 2C:44-3. The court determined

that defendant would be sentenced to an extended term and that NERA applied

to his aggravated manslaughter conviction. Accordingly, the court sentenced

defendant on the manslaughter conviction to a term of forty-seven years in

prison, with eighty-five percent of that term to be served without parole

eligibility. On the endangering the welfare of a child conviction, defendant was

sentenced to a concurrent term of ten years in prison with five years of parole

ineligibility.

In March 2011, defendant filed a notice of appeal. Later that year,

however, the appeal was dismissed for failure to prosecute. After various

motions, in June 2019 we granted defendant's motion to vacate the dismissal and

reinstate his appeal. Accordingly, defendant now appeals from his conviction s

and sentence.

A-3295-10T3
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II.

On appeal, defendant makes six arguments, which he articulates as

follows:

POINT I – THE TRIAL COURT ERRED WHEN IT
ALLOWED THE STATE'S WITNESS TO TESTIFY
ABOUT DEFENDANT'S STATEMENT AFTER HE
HAD BEEN ASSAULTED IN PENNSYLVANIA.

POINT II – THE TRIAL COURT ERRED BY
ALLOWING THE STATE'S EXPERT TO TESTIFY
ABOUT THE CAUSE OF D.C.'S INJURIES.

POINT III – THE TRIAL COURT ERRED WHEN IT
DENIED DEFENDANT'S MOTION FOR
JUDGMENT OF ACQUITTAL UNDER COUNT
ONE.

POINT IV – THE TRIAL COURT'S CUMULATIVE
ERRORS DENIED DEFENDANT A FAIR AND
RELIABLE TRIAL.

POINT V – TRIAL COUNSEL WAS INEFFECTIVE
BY FAILING TO INVESTIGATE AND CALL A
REBUTTAL EXPERT WITNESS THAT D.C.'S
FATAL INJURIES COULD HAVE BEEN CAUSED
BY FALLING DOWN THE STAIRS AND LANDING
ON A GUARD GATE.

POINT VI – DEFENDANT'S [FORTY-SEVEN]-
YEAR AGGREGATE SENTENCE WAS
MANIFESTLY EXCESSIVE.

(1) As the State's motion for an extended term was
deficient, the imposition of an extended term by the
trial was improper.

A-3295-10T3
9
(2) As the trial court double counted the application
of certain aggravating factors, the matter should be
remanded for re-sentencing.

(3) The trial court erred when it found no mitigating
factors applied in this case.

1. The Testimony About Defendant's Statement

Defendant contends that Cathy should not have been permitted to testify

about an incident where defendant had been assaulted in Pennsylvania and his

alleged statement that "he knows how [D.C.] feels now." Defendant argues that

neither the incident nor the statement was relevant, and both should have been

excluded under N.J.R.E. 403.

Before Cathy provided this testimony, the State alerted defense counsel

and counsel objected. The trial judge overruled defendant's objection , finding

that while the statement was subject to different meanings, it was relevant to the

disputed issue of whether D.C. had been assaulted. The court also found that

the incident and related statement were not substantially more prejudicial than

probative.

"A trial court's ruling on the admissibility of evidence is reviewed on

appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011).

"Considerable latitude is afforded" to trial court evidentiary rulings and they

A-3295-10T3
10
will be reversed "only if [they] constitute[] an abuse of discretion." State v.

Cole, 229 N.J. 430, 449 (2017) (quoting State v. Kuropchak, 221 N.J. 368, 385

(2015)).

Under N.J.R.E. 403, a trial court can exclude relevant evidence if its

probative value is substantially outweighed by the risk of undue prejudice. State

v. Williams, 240 N.J. 225, 237-38 (2019). If the trial court weighs the probative

value of the evidence against its prejudicial effect, such a ruling should only be

overturned if it constitutes "a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988).

Here, we discern no abuse of discretion or error. The incident and

defendant's statement were relevant to the material issue of whether D.C. was

hurt by accidentally falling down stairs or an assault by defendant. While we

agree with the trial court that the defendant's statement was subject to varying

interpretations, the interpretation and weight were questions for the jury. See

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 502 (App. Div. 2007) (it is

within the "province of a jury" to determine the weight of the evidence). In

addition, we discern no abuse of discretion in the trial court's finding that the

probative value of the incident and defendant's statement were not substantially

outweighed by the risk of undue prejudice.

A-3295-10T3
11
2. Testimony by Dr. Rorke-Adams

Defendant argues that the trial court erred by permitting Dr. Rorke-Adams

to testify about the cause of D.C.'s injuries because those opinions were not set

forth in her expert report. In her report, Dr. Rorke-Adams listed the observations

she made of the damage suffered in D.C.'s brain, spinal cord, and eyes. She did

not offer an expert opinion about what could have caused the damage. The trial

judge overruled defendant's objection and allowed Dr. Rorke-Adams to testify

about the causes of D.C.'s injuries. The trial court found that there was no

surprise or prejudice to defendant because defendant had long been on notice

that the State contended that he had shaken and punched the child.

"The admission or exclusion of expert testimony is committed to the

sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015).

Expert testimony that deviates from the pretrial expert report may be excluded

if the court finds "the presence of surprise and prejudice to the objecting party."

Velazquez ex rel. Velazquez v. Portadin, 321 N.J. Super. 558, 576 (App. Div.

1999). If the trial court allows an expert to go beyond her or his report, the court

should consider (1) the absence of design to mislead, (2) the absence of the

element of surprise if the evidence is admitted, and (3) the absence of prejudice

A-3295-10T3
12
that would result from the admission of the evidence. Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div. 1978).

We discern no abuse of discretion in the trial court's decision to permit

the testimony by Dr. Rorke-Adams. There is nothing in the record that indicates

a design to mislead. Just as significantly, there was no surprise or prejudice.

Defendant was aware of the State's theory of the case that he had caused D.C.'s

death by shaking and punching the child. Moreover, Dr. Rorke-Adams'

testimony was consistent with the report and testimony by Dr. Hood concerning

D.C.'s injuries and death.

3. The Motion for Acquittal

Next, defendant argues that the trial court erred when it denied his motion

for acquittal on the charge of first-degree murder. We disagree.

An appellate court reviews the denial of a motion for acquittal de novo,

applying the same standard used by the trial judge. State v. Williams, 218 N.J.
576, 593-94 (2014). "We must determine whether, based on the entirety of the

evidence and after giving the State the benefit of all its favorable testimony and

all the favorable inferences drawn from that testimony, a reasonable jury could

find guilt beyond a reasonable doubt." Ibid. (citing State v. Reyes, 50 N.J. 454,

558-59 (1967)). The reviewing court "must consider only the existence of such

A-3295-10T3
13
evidence, not its 'worth, nature, or extent.'" State v. Brooks, 366 N.J. Super.
447, 453 (App. Div. 2004) (quoting State v. Kluber, 130 N.J. Super. 336, 342

(App. Div. 1974)).

A person is guilty of murder when "(1) the actor purposely causes death

or serious bodily injury resulting in death; or (2) the actor knowingly cause s

death or serious bodily injury resulting in death[.]" N.J.S.A. 2C:11-3(a)(1) and

(2). Here, the trial court correctly applied the Reyes standard and found that

there was sufficient evidence to allow the jury to consider the charge of murder.

The trial court found that the State had presented medical testimony from both

Dr. Hood and Dr. Rorke-Adams that D.C. suffered injuries from trauma and

shaking. Moreover, the doctors had testified that those injuries caused the

child's death. We reject defendant's argument that there was no evidence

identifying him as the person who shook D.C. The testimony by Cathy provided

strong circumstantial evidence that defendant had purposely and knowingly

caused the child's death. Cathy testified that when she went to sleep, D.C. was

awake and eating chips. She went on to testify that when she was woken up,

D.C. was grayish and limp, and defendant was the only person who had been

with D.C.

A-3295-10T3
14
Cathy's testimony is corroborated by the testimony of defendant's friend

Sam. Sam testified that defendant confessed that he shook and punched D.C.

until he was unresponsive. While defendant argues that Sam later recanted his

statements to a defense investigator, the credibility of Sam's testimony was an

issue for the jury.

4. The Alleged Cumulative Errors

Having found no individual errors warranting a reversal, we reject

defendant's arguments that there were cumulative errors warranting a reversal.

Our review of the trial record convinces us that defendant was accorded a fair

trial and there were no errors that even when combined warrant a reversal of the

jury verdict. See State v. Jenewicz, 193 N.J. 440, 443 (2008); State v.

Wakefield, 190 N.J. 397, 538 (2007).

5. The Allegations Concerning Ineffective Assistance of Counsel

Defendant asserts that his trial counsel was ineffective in failing to

investigate and call a rebuttal witness to testify that D.C.'s fatal injuries could

have been caused by falling down the stairs and landing against a guard gate.

Generally, an appellate court will not consider ineffective assistance of counsel

claims on direct appeal "because such claims involve allegations and evidence

that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992).

A-3295-10T3
15
We believe that defendant's arguments concerning the ineffective assistance of

his trial counsel are better left for a petition for post-conviction relief (PCR).

We make this ruling recognizing that defendant's direct appeal was

delayed for a substantial period. Nevertheless, the current record does not

disclose whether trial counsel acted deficiently or whether that failure to act

caused prejudice to the defense. Moreover, we note that after defendant's direct

appeal was dismissed, but before we allowed it to be reinstated, defendant filed

a petition for post-conviction relief which the trial court appropriately denied

without prejudice. Accordingly, defendant can address his claims of ineffective

assistance of counsel by renewing his PCR petition.

6. The Sentence

Finally, defendant challenges his sentence. He contends that the State's

motion for an extended term was defective, that the sentencing court double-

counted certain aggravating factors, and that the court erred when it found that

there were no mitigating factors. We are not persuaded by any of these

arguments.

When the State seeks to have an eligible defendant sentenced to an

extended term, it is required to serve notice on defendant within fourteen days

of the return of the verdict. R. 3:21-4(e). When there are multiple convictions,

A-3295-10T3
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the State's notice should identify the offense for which the State seeks extension.

State v. Thomas, 195 N.J. 431, 436 (2008).

When the State makes an application, the court can sentence a defendant

to an extended term as a persistent offender. N.J.S.A. 2C:44-3(a). A persistent

offender

is a person who at the time of the commission of the
crime is [twenty-one] years of age or over, who has
been previously convicted on at least two separate
occasions of two crimes, committed at different times,
when he was at least [eighteen] years of age, if the latest
in time of these crimes or the date of the defendant's
last release from confinement, whichever is later, is
within [ten] years of the date of the crime for which the
defendant is being sentenced.

[Ibid.]

The sentencing court thoroughly reviewed each of the statutory factors

and made findings on how defendant met the definition of a persistent offender.

The court also accepted the State's clarification that it wanted defendant to be

sentenced to an extended term for his aggravated manslaughter conviction. The

State had clarified that position in the sentencing memo and defendant has no

viable arguments that he was not on notice that the State was seeking an

extended sentence on his aggravated manslaughter conviction. Consequently,

we discern no abuse of discretion or reversible error in the trial court's decision

A-3295-10T3
17
to grant the State's motion for an extended term and to impose that extended

term on the aggravated manslaughter conviction.

We review the remaining sentencing determinations under a deferential

standard. State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless,

214 N.J. 549, 606 (2013)). We do not substitute our judgment for "the judgment

of the sentencing court." Lawless, 214 N.J. at 606 (first citing State v. Cassady,

198 N.J. 165, 180 (2009); and then citing State v. O'Donnell, 117 N.J. 210, 215

(1989)). Instead, 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 conscience."

[State v. Miller, 237 N.J. 15, 28 (2019) (alteration in
original) (quoting State v. Fuentes, 217 N.J. 57, 70
(2014)).]
The trial court found five aggravating factors: one, the nature and

circumstances of the offense and the role of the actor, N.J.S.A. 2C:44-1(a)(1);

two, the gravity and seriousness of the harm inflicted on the victim, N.J.S.A.

2C:44-1(a)(2); three, the risk defendant will commit another offense, N.J.S.A.

2C:44-1(a)(3); six, defendant's prior criminal record and the seriousness of the

A-3295-10T3
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offenses of which he had been convicted, N.J.S.A. 2C:44-1(a)(6); and nine, the

need to deter defendant and others from violating the law, N.J.S.A. 2C:44- -

1(a)(9). All those findings are supported by substantial credible evidence in the

record.

Moreover, the sentencing court did not double count aggravating factors

one and two. Defendant argues that the application of aggravating factor two

effectively double counts the elements for aggravated manslaughter. We

disagree. When finding aggravating factor two, the trial court relied on the fact

that D.C. was seventeen months old at the time of his death and was unable to

protect or defend himself in any way. Since a victim's age and vulnerability are

not elements of aggravated manslaughter, no double counting occurred. See

N.J.S.A. 2C:11-4(a)(1).

The trial court then considered defendant's arguments concerning

mitigating factors but determined that no mitigating factor applied. The court's

determination in that regard was also supported by substantial evidence in the

record.

Having determined that it would sentence defendant to an extended term

as a persistent offender, the forty-seven-year prison term imposed was within

the statutorily permissible range for the conviction of first-degree aggravated

A-3295-10T3
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manslaughter. Given the nature of the crime, the sentence does not shock our

judicial conscious.2

Affirmed.

2
Defendant also contends that there were certain inaccuracies in the judgment
of conviction because it states that he waived his right to appeal, the sentence
was the product of a negotiated plea, and references a sentencing memo that was
not attached. We do not deem those misstatements sufficient to warrant a
remand because defendant was clearly convicted by a jury after a trial and he
can obtain the sentencing memo from the trial court.
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