Before Judges Baime, Brochin and Eichen.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 1999
On appeal from Superior Court of New Jersey, Law Division, Essex County.
A jury acquitted defendant of purposeful or knowing murder (N.J.S.A. 2C:11-3a(1) and (2)), but found him guilty of aggravated manslaughter (N.J.S.A. 2C:11-4) and endangering the welfare of a child (N.J.S.A. 2C:24-4). The trial court merged the offenses and sentenced defendant to twenty-five years imprisonment with an eight year parole ineligibility term on the conviction for aggravated manslaughter. Although additional arguments are advanced, defendant's principal contention is that the trial court erroneously excluded evidence that the State's chief witness committed the criminal act. We agree and reverse defendant's conviction.
Damaris Conyers and her one year old son, Michai, resided on the third floor of an apartment building owned by Damaris's nephew, Wayne Harris. Harris lived on the first floor with his daughter, Destiny. Damaris was "perceptually impaired," and thus her mother, Mary Conyers, served as Michai's guardian. Because of Damaris's condition, her relatives were not enthusiastic when she became engaged in a romantic relationship with defendant, who resided in a building across the street. Nevertheless, defendant often visited Damaris at her apartment.
It is undisputed that at approximately 4:00 p.m. on October 15, 1996, emergency personnel responded to Damaris's apartment, where they observed defendant performing CPR on Michai. The child had no pulse and appeared blue in color. One of the paramedics removed Michai's shirt and observed recent and older black and blue marks. Michai was immediately transported to a nearby hospital where he was pronounced dead. The emergency room physician noted bruises over the child's stomach, a blackened left eye, dried blood on his lip, and black and blue marks on his forehead. X-rays revealed posterior rib fractures dating back approximately six weeks, a new posterior rib fracture on the child's left side, and a fracture of the right zygomatic bone near the temple. A subsequent autopsy disclosed substantial bruises about the head, probably caused by at least three separate blows. There was hemorrhaging in the child's abdomen which appeared "fresh," probably caused by twelve "different impacts." There was internal bleeding caused by lacerations of the liver and injuries to the colon and small bowel caused by "significant force."
It is uncontroverted that the injuries that caused Michai's death occurred on the morning of October 15, 1996, and that only defendant and Damaris had access to the child at that time. The principal question at trial was which of the two individuals committed the homicidal act.
Damaris, who was charged with endangering the welfare of the child but granted immunity, claimed that she left Michai in her apartment under defendant's care while she babysat for Destiny. She testified that Michai was in good physical health when she left him with defendant, who was awake, but sprawled on the bed. According to Damaris, defendant appeared at the door of Harris's apartment later in the morning, but she was busy administering medicine to Destiny and dismissed his request to talk to her. Sometime thereafter, defendant shouted from the stairway, and Harris, who had returned to his apartment, told Damaris to "go upstairs." Damaris testified that when she returned to her apartment, she observed Michai laying across the bed. His face appeared blue in color and there were cuts on his face and lips. An ambulance was summoned, and the child was transported to the hospital.
At the hospital, defendant told Harris that he was asleep when Damaris left the baby with him and that Michai was on his stomach in the bed when he awoke. When first interviewed by Essex County Prosecutor's Investigator, Kirk Schwindel, defendant explained that when he awoke, "he observed the baby was wheezing and having a problem," and that he then sought Damaris's assistance. In a subsequent interview with Schwindel, defendant related that as he was sleeping, he felt Michai "climbing . . . over him," and he pushed the child away. Defendant said that he pushed Michai toward the headboard of the bed.
Defendant elected to testify. His description of the events leading to Michai's death was markedly different than that offered by Damaris. Defendant testified that he did not go to work on the day in question because he was suffering from a toothache. After taking several medications that made him drowsy, defendant fell asleep in Damaris's bed. At some point, defendant awoke. Damaris was holding Michai in her arms. Defendant claimed that he again fell asleep. When he awoke, Michai was in the bed. Because the baby was wheezing and appeared inert, defendant summoned Damaris who was in Harris's apartment. Defendant testified that when questioned by Schwindel, he assumed that he had inadvertently injured the baby while he was asleep. However, when he later learned of the severity of the child's injuries, he realized that he could not have been responsible.
To bolster the claim that Damaris killed Michai, the defense offered several witnesses. They would have testified that Damaris "physically abused" the child by "striking" and "dropping" him, often leaving the baby unattended. On at least one occasion, Damaris had confessed that "she wished she had never had Michai." The defense sought to admit this evidence to prove Damaris's homicidal motive and to rebut her testimony that she never hit the baby and was not unhappy that he was born. In a lengthy colloquy with the trial court, defense counsel explained that "two adults" had access to Michai on the morning of his death and that it was "more likely" that Damaris "inflicted [the fatal] injuries." The attorney argued further that Damaris's complaint to one of the witnesses that "she wished she never had a baby" constituted compelling evidence of her motive to kill and rebutted her claim that she was happy with her status as mother of the child.
The trial court excluded the proffered evidence under N.J.R.E. 404(b). Specifically, the court concluded that prior acts of child abuse were not admissible because such evidence merely established the "Disposition" of Damaris to commit crimes which was unanchored to the death of the victim. The trial court added that even if otherwise admissible, the probative value of ...