On appeal from Monmouth County Court.
Allcorn, Seidman and Botter. The opinion of the court was delivered by Botter, J.A.D. Seidman, J.A.D. (dissenting in part).
[169 NJSuper Page 380] These appeals, which we hereby consolidate on our own motion, are taken from convictions entered upon jury verdicts in two successive trials. In the first trial defendants were convicted of child cruelty committed upon their twin daughters who were eight months of age, in violation of N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3. Defendants were also found guilty of unlawful possession of controlled dangerous substances -- paregoric, which contains morphine, and oxazepam, a tranquilizing drug -- in violation of N.J.S.A. 24:21-20(a)(3) and N.J.S.A. 24:21-20(a)(1).
However, in the first trial the jury was unable to agree on a verdict on the first count of the indictment charging defendants with manslaughter for the death of their daughter Ana. Defendants were thereafter retried on the manslaughter charge only and were convicted. Suspended prison terms, probation and fines were imposed on both defendants following the first trial. On the manslaughter convictions, James Hofford was sentenced to the Monmouth County Correctional Institution for 364 days, which was suspended except for six months, and he was placed on probation for five years. The same sentence was imposed on Crystal Hofford, except that all but four months of her sentence was suspended.
On the appeal taken from the convictions in the first trial appellants contend that (1) the failure of the prosecutor to provide the defense with the July 2, 1976 toxicological report constituted error; (2) misconduct of the prosecutor warrants reversal of the convictions, and (3) the trial judge erred in instructing the jury that it was unnecessary for the State to prove evil intent or bad motive. We find no merit in these contentions, as the brief discussion which follows will demonstrate.
Defendants admitted having given paregoric to their children. Expert testimony established that overdoses had been administered to both children. Paregoric contains morphine and morphine is a morphinan which was the cause of Ana's death. Juliet survived, however, having been given a narcotic antidote at the hospital where she was admitted in a comatose condition, unresponsive to stimuli. The jury could have inferred some guilty knowledge on defendants' part since no bottles of medicine were found by the police in their search of the premises where defendants were staying. Hofford claimed that the bottle of paregoric had been thrown out by his wife the night before the children became ill.
We turn now to defendants' first contention. The prosecutor had furnished defense counsel with a toxicological report dated June 28, 1976 well before the trial commenced.
A second report, dated July 2, 1976, was not furnished until the second day of trial. The prosecuting attorney represented that he himself had not received this second report and had not seen it until the day before. In any case, the record demonstrates that defendants were not prejudiced by the late receipt of this report. Defense counsel elected to proceed with the testimony of the State's expert witness without a continuance, reserving the right to produce an expert as a witness. In fact, the toxicologist who was called as a witness for the defense had the opportunity to examine both reports since he did not testify until the fifth day of the trial. Even this witness testified that the amount of morphine in Ana's blood was lethal.
Defendants complain of prosecutorial misconduct. The first instance relates to evidence that defendants were in possession of marijuana. They were charged with possession of marijuana in the indictment, but that part of the fourth count which dealt with marijuana was severed from the trial of the manslaughter and child cruelty counts. In the circumstances it would have been clearly improper for the prosecutor intentionally to interject evidence of marijuana in the trial of these other charges. As the testimony approached the proof of marijuana, however, objections were sustained, and we perceive no prejudice to defendants in this regard. We reach the same conclusion with respect to the prosecutor's use of Hofford's prior conviction for possession of marijuana for the purpose of affecting his credibility. N.J.S.A. 2A:81-12. The trial judge probably erred in permitting the question to include reference to the quantity of marijuana possessed, namely, ten pounds, but the judge did sustain defense counsel's objection to the prosecutor's improper reference to a plea bargain with regard to the dismissal of charges of possession with intent to distribute. We deplore these censurable tactics of the prosecuting attorney, but find no abuse of discretion in the trial judge's denial of the motion for a mistrial on this account.
With respect to the prosecutor's comments in summation, we note, as did the trial judge, that no contemporaneous objection was made by defense counsel with respect to most of those comments. The objection was not made until the summation was completed. In any case, we find no cause for reversal based upon the prosecutor's summation. Moreover, the trial judge did charge the jury to disregard one aspect of the prosecutor's summation in which he gave a reason for a witness not testifying as to the history taken from Mrs. Hofford although there was no evidence in the record to support that comment. The trial judge also charged the jury to disregard any statements made by counsel as to the evidence in the case if those comments differed from their own recollection of the evidence. This charge sufficiently dealt with disputes between counsel as to some evidence referred to in summation.
Lastly, defendants complain of the trial judge's charge to the jury with respect to the intent required for a finding of guilty on the child cruelty counts. N.J.S.A. 9:6-3 provides that any parent "who shall abuse, abandon, be cruel to or neglectful of" any child shall be guilty of a misdemeanor. Cruelty to a child is defined in N.J.S.A. 9:6-1. It includes the infliction of unnecessary mental or physical pain or suffering upon a child, any "willful act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child," and "exposing a child to unnecessary hardship, fatigue or mental or physical strains that may tend to injure the health or physical or moral well-being of such child."
The trial judge charged the jury that the State was required to prove that defendants, "by an intentional and wilful act of omission or commission," caused or permitted pain and suffering to be ...