Leonard, Allcorn and Crahay. Allcorn, J.A.D. (dissenting).
On October 26, 1971 in the Tall Tree Apartments in Jamesburg, Middlesex County, defendant's daughter Kimberly died. She was then approximately seven months old and an identical twin of her sister Karen.
Defendant was indicted for manslaughter contrary to N.J.S.A. 2A:113-5. Thereafter a superseding indictment added as an offense the charge of child neglect contrary to N.J.S.A. 9:6-1 and 3, and a jury trial thereof resulted in defendant's convictions on both counts.
Defendant subsequently moved for a judgment of acquittal or a new trial. For reasons to be discussed infra, the trial court ordered a new trial on the manslaughter charge but let
stand the conviction for child neglect. On leave granted, the State appeals and defendant cross-appeals from the denial of a new trial as to the neglect count.
The essential theory of the State's case was that defendant was wilfully and grossly negligent in the failure to feed Kimberly as a result of which she developed malnutrition and dehydration causing her death. Additionally, it was contended that defendant should have procured medical attention for Kimberly when she observed her deteriorating condition.
Before we deal with the record, which we must do at some length, we pause to note that the kernel of these appeals and our disposition of them was the prosecution's position from the very opening of the trial that the jury should consider that Karen, the surviving twin, was, at the time of Kimberly's death in generally the same malnourished and dehydrated state. (Defendant was never charged with any alleged wrongdoing in her treatment of Karen.) It might also serve to illuminate at this point the fact that the death certificate filed the day after Kimberly's death reported the immediate cause of her death to be second and third degree burns over 15% of her body and that conditions which gave rise to the stated cause of death were dehydration and malnutrition. On January 28, 1972, approximately three months later, the death certificate was amended. The cause of death was then recorded as dehydration and malnutrition and it was reported that there were post-mortem burns over 15% of the body area.
Kimberly was brought to the office of Dr. Eugene Pirog on the date of her death and was dead on arrival. (Prior thereto, on May 11, 1971, he had seen both Kimberly and Karen when they were brought to him by defendant primarily because Kimberly had a cold. At that time they were both normal and healthy.) He directed that Kimberly's body be taken to a hospital for autopsy since he felt, finding blisters on her body, that she had probably been burned. He opined
that blisters could only be produced in a living body but that once formed they would remain after death. As will be seen later, this opinion was disputed by other State medical witnesses.
The Chief of Police of Jamesburg, Peter Giacomozzi, testified regarding the investigation he conducted at defendant's apartment on the evening of Kimberly's death. He observed that the bedroom wherein Kimberly's body was found to be intensely hot, notwithstanding that a window was partially open and he experienced difficulty in breathing because of it. He stated that the temperature in a nearby parlor was at least 85 degrees and in his opinion the bedroom temperature was greater. He testified that he had been told that the child was found partially on a radiator between the wall of the room and the bed. At the time of his investigation he estimated that there were eight to ten inches between the wall and the bed. He did not touch the radiator because the heat was "unbearable". He was aware of complaints made by tenants in the Tall Tree apartment complex regarding heating problems although he had not personally dealt with them.
When Chief Giacomozzi arrived at the apartment two persons were present -- Barry Williams and Dorothy Lawrence. Defendant was not there but rather was with a group of people in the vicinity of an ambulance which had been summoned for Kimberly.
Lieutenant Robert Reid of the Jamesburg Police testified that he arrived at defendant's apartment after Chief Giacomozzi. He observed that the living room floor was dirty with candy and popcorn. The bedroom where Kimberly was found had clothes strewn about it and the twin's bed contained neither bedding nor sheets. He, like Chief Giacomozzi, opined that the apartment was "very, very hot".
Dr. Dorothy Pietrucha, coordinator of the Pediatrics Department of St. Peter's Hospital in which Kimberly and Karen were born and to which Kimberly's body was brought testified that the twins were born on March 16, 1971 in a
normal birth. Dr. Pietrucha stated that on the date of Kimberly's death Karen was also brought to the hospital and was diagnosed as suffering from malnutrition. Dr. Pietrucha testified that she examined Karen three days after her admission to the hospital i.e., October 29, 1971 at which time her condition was "stable". She was however emaciated with little subcutaneous tissue. Her dehydrated state had been cured by use of large quantities of fluids. This testimony was received over defense objection but was permitted on the ground that it was so intimately related to the neglect of Kimberly that it ought not be excluded. Her clinical diagnosis of Karen's case was -- "malnutrition and child neglect". Other tests were made on Karen which tended to rule out that she was suffering from any disease which might have generated the condition. Dr. Pietrucha stated that after her discharge for treatment for malnutrition and dehydration Karen returned to the hospital for a clinical visit. Testifying from clinical charts dated November 30, 1971, Dr. Pietrucha was asked who was the doctor in attendance at the time of Karen's subsequent visit to which she concededly improperly responded --
On November 30 I saw Karen again and at that time my note here is: child neglect case. Now with foster mother who is doing a very good job.
The portion emphasized was in the trial court's later view deemed "devastating" to defendant. We have labeled it "the Pietrucha answer".
Defense counsel objected and moved for a mistrial. The prosecutor conceded that the answer was an inadvertent mistake and probably should not have been said but urged that it was not substantially prejudicial to defendant, arguing that --
Defense counsel declined the trial court's offer to give the jury a cautionary instruction regarding the matter on the ground that it would only lend emphasis to the damage which he opined had been "irretrievably committed". The motion for a mistrial was denied -- the trial court observing in part --
(The trial judge again solicited a request from defense counsel limiting the impact of the testimony. Even assuming admissibility, of which more later, none was forthcoming from the defense and we perceive no meaningful instruction in the Court's final charge to the jury to that end. See Evid. R. 6.)
On cross-examination, Dr. Pietrucha testified that "child neglect" was a medical term. We observe here that Dr. Shuster, a State's witness did not feel that it was. (No authority is cited supporting Dr. Pietrucha's view on this point. We find none and are satisfied that the words constituted an ultimate fact in issue in the indictment. See Biro v. Prudential Ins. Co. of America, 110 N.J. Super. 391 (App. Div. 1970); rev'd 57 N.J. 204 (1970)).
The Chief Medical Examiner for Middlesex County, Dr. Marvin Shuster, performed an autopsy on Kimberly's body on October 27, 1971 and on the basis of having completed the gross portion of it listed second and third degree burns as the primary cause of death with dehydration and malnutrition as secondary causes. The burns, thermal in nature, covered 15% of Kimberly's body and were found on the right side of her face, neck, right arm, and the right side of her body and hips. He noted blisters and opined that blisters could occur post-mortem provided the body contained sufficient
fluids when burned. He concluded after examining sections of the tissues and skin microscopically that the burns here were in fact post-mortem. He amended the death certificate as we noted earlier. Dr. Shuster stated that there was a difference of opinion in the medical profession as to whether blisters might be formed on a body when burns occur post-mortem. During the autopsy be found a stool in the body which appeared to him to be a milk stool indicating that that she had ingested milk at some time. He concluded from his examination that Kimberly had not had food for at least four hours prior to death and stated that the malnutrition he observed in her was moderate to marked as opposed to severe. (The State contended that the child was dead before contact with the heater. Dr. Shuster testified that if Kimberly were dead it would obviously have been impossible for her to have rolled onto the radiator. It was during the examination of Dr. Shuster that the Prosecutor stated that he felt he could "* * * analogize this situation with the standard charge on escape * * *" It was implicit both here and during his summation that he was suggesting that defendant -- or perhaps someone on her behalf -- placed the child's body on the radiator so as to obscure the cause of death.)
Dr. Edwyn Albano, the Chief Medical Examiner of New Jersey, examined a small sample of skin removed from a burned area on Kimberly's body and concluded that the burns were post-mortem, and that it was possible for a blister to form after death. He added that it was possible for some burns on ...