Before Judges Baime, Eichen and Wecker.
The opinion of the court was delivered by: Baime, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from Superior Court of New Jersey, Law Division, Mercer County.
This appeal presents novel questions concerning the role of a prosecutor in presenting a case to a grand jury. At issue is whether a prosecutor may screen questions grand jurors wish to propound to witnesses. We find no constitutional infirmity in this practice so long as the prosecutor's exercise of this authority does not infringe upon the grand jury's independence.
Following a protracted jury trial, defendant was convicted of aggravated manslaughter (N.J.S.A. 2C:11-4). Although the factual issues were hotly contested, the jury could reasonably have found from the evidence that defendant severely beat the two year old victim, Nathaniel Bryant, Jr., resulting in massive brain injuries and death. While there was evidence of sexual abuse, the jury apparently discounted it, thus acquitting defendant of purposeful or knowing murder (N.J.S.A. 2C:11-3a(1) and (2)) and felony murder (N.J.S.A. 2C:11-3a(3)).
Because the principal issue concerns the conduct of the grand jury proceedings, we need not recount the facts at length. Defendant's sister, Gwen London, was the victim's godmother. Defendant resided at his sister's house with her two children, Curtis London and Walter White, although there is evidence that White moved out of the house long before the victim's death. While Gwen owned the house, she actually resided at a different address with her two other children, Jeffrey and Steven Carter. However, these living arrangements were fluid.
On the morning of the incident, Annette Baker dropped off her son, Nathaniel, at Gwen London's house. Defendant was to baby-sit for Nathaniel. As was their practice, Annette's other son, Bruce, escorted Nathaniel to the front door. There is some suggestion that Walter White admitted Nathaniel into the house, but as we noted, the evidence strongly supports the thesis that White had moved out of the house before Nathaniel's death and only visited intermittently. In any event, present in the house were defendant, Curtis London, and Jeffrey and Steven Carter.
The day passed uneventfully. Although Nathaniel fell while playing in a nearby park, it appears that he "got up and ran off" immediately without suffering any serious injury. That evening, defendant and the children ate dinner and watched television. Nathaniel went to sleep in defendant's upstairs bedroom. At approximately midnight, Annette appeared to pick up Nathaniel, but at defendant's urging, decided to leave the child at the London address. This was the first time Annette allowed Nathaniel to remain overnight.
The next morning, Jeffrey awoke at 7:30 to find defendant watching television in the living room. At one point, defendant went upstairs. Jeffrey heard defendant exclaim "man." From that point on, defendant appeared somewhat nervous, smoking cigarettes one after the other. When Gwen telephoned, defendant told her that he could not waken Nathaniel. Gwen was not alarmed, however, believing that the child was merely tired.
Later in the morning, defendant announced that he was going to wake up Nathaniel. When Curtis entered defendant's bedroom, he saw defendant "shaking' Nathaniel. Nathaniel's eyes were "glassed over," rolling back into his head, his body was limp and he did not appear to be breathing. Curtis telephoned Gwen, who arrived within minutes. Emergency medical personnel were summoned and responded shortly thereafter. The child was not breathing, and a heart monitor detected no electrical activity. He was transported to a nearby hospital where he was pronounced dead.
The cause of death was an "acute left subdural hemorrhage and massive cerebral edema." The cerebral edema was the result of a severe blow to the head which occurred approximately three to nine hours before death. Additionally, there were significant signs of sexual abuse. The autopsy disclosed "extensive deep hemorrhages" in the subcutaneous tissues, fat and muscles of the buttocks. The child's perineum was a purplish blue. There was scarring of the "anal mucosa" and evidence of multiple tears of the anal opening. The child's scrotum was swollen and there were hemorrhages in the testicles. Except for the injuries to the brain, the damage to the child's body would have caused "excruciating" pain. Although the dilation of the child's anus was caused over a period of time, the other injuries were of recent origin. A fall could not possibly have caused these injuries.
When questioned, defendant initially implied that Nathaniel's head injury was caused by the fall in the park. However, the officers escorted defendant to the scene of the fall, where the ground was "mushy and soft." Defendant subsequently claimed that the left side of Nathaniel's head struck the sideboard of the bed three or four times while he was attempting to revive the child. Using a doll provided by the police, defendant demonstrated how the child's head came in contact with the wall. When told that his demonstration was not consistent with the severity of the injuries inflicted, defendant admitted that he may have used ...