Before Judges Wefing, Lesemann and Parrillo. On appeal from Superior Court of New Jersey, Law Division, Ocean County, I-99-04-00468.
The opinion of the court was delivered by: Lesemann, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 7, 2001
Defendant T.C. appeals from her conviction and resultant sentence to ten years in prison, with five years of parole ineligibility, for endangering the welfare of her child, Billy.*fn1
The indictment of T.C. refers to the period between July 1, 1995, when Billy was nine years old, and November 6, 1996, when he was eleven years old. It charges that T.C. caused "harm" to Billy, making him "an abused or neglected child." The evidence presented at a lengthy trial included proof of a long course of sadistic, violent abuse, both physical and mental, which occurred not only during the period covered by the indictment, but also before that, when T.C.'s pattern of abuse included food deprivation which stopped only when Billy's grandmother assumed his custody and cared for him for approximately five years. Thereafter, when Billy was returned to his mother, the pattern of abuse resumed and intensified to an almost daily occurrence until Billy was finally removed from T.C.'s custody in November 1996.
The evidence against defendant was overwhelming. It included testimony from Billy's grandmother, his sister, his father, a friend and neighbor to whom defendant described her abuse of Billy, two of the boy's teachers, and a surreptitiously made tape on which defendant virtually boasted of the abuse she heaped upon her son. Particularly in the light of that evidence, we find that none of the errors charged by defendant constituted prejudicial error requiring a reversal of her conviction and sentence.
Billy was born on June 19, 1985. While he was quite young, his paternal grandmother, A.P., became concerned about his extremely low weight. She also noted an early manifestation of the different treatment which defendant accorded to her two daughters and to Billy. Those daughters, one a year older than Billy and one a year younger, were allowed to eat additional foods when they visited their grandmother, but Billy was not. Any food which A.P. attempted to give Billy was removed by defendant, who contended that the foods made him ill. A.P. complained more than once to the Division of Youth and Family Services (DYFS) about Billy's condition, and eventually, in January 1990, DYFS had him hospitalized, removed from his parents' care, and placed in foster care. Thereafter, he was placed with A.P., and she cared for him for approximately five years. She testified that she fed him normally and plentifully, and his underweight problem soon disappeared.
In or around July 1995, Billy spent a weekend with his parents, after which they refused to return him to his grandmother. Although A.P. complained to DYFS, the agency determined that Billy should be returned to his parents on a permanent basis. He was then ten years old.
According to the testimony of Billy and his older sister, J., there was no significant abuse during the first month or two following Billy's return. Thereafter, however, the pattern of abuse resumed and intensified until Billy's final removal from his mother's custody in November 1996. J., who was fifteen years old at the time of trial, testified that her mother treated Billy very differently from the way she treated her two daughters. Billy testified to the same effect. J. said that Billy was often prohibited from eating dinner with the rest of the family. He would often go to school without lunch or breakfast. Billy himself testified that he was almost never permitted to eat with the family.
Billy and J. also said that Billy was hit on a regular basis, and the intensity and number of beatings increased over time. By November 1996, the beatings were "on a daily basis." They came as a result of Billy not doing his chores correctly, or saying something wrong or "just whatever she could blame him for." Defendant encouraged her daughters to tell her if Billy had done anything wrong. For any such offense, he was beaten, and the beatings often involved a belt or a spoon which defendant used to hit Billy on the head. J. was aware of that because her mother would often tell J. to bring her the spoon or the belt to administer the beatings.
Billy also described the increased intensity of the beatings administered by his mother. He said it "started as just her hands, and then it gradually went up to a belt." She would hit him "two or three times with it," and then she took to using a different type of belt, "a suede braided belt." She also increased the number of blows per beating, which "started as maybe just one, and it got up to" sometimes six blows per beating. The beatings were on an almost daily basis for approximately three months before he was removed from defendant's custody on November 7, 1996.
A bell which defendant installed on the door to Billy's room was a prominent subject of testimony at trial. Billy apparently had a bed-wetting or similar problem controlling his urination. Defendant also believed that on one occasion, he had taken one of her pills for himself. As a result, defendant installed a bell alarm on Billy's door so she would hear him whenever he opened the door. At one point, she also locked his bedroom door. If she heard Billy's door open during the night, she would beat him as punishment in the morning. To try to solve the problem of not being permitted to go to the bathroom at night, Billy at one point began urinating out his window. Defendant found out about that and sealed the window. Billy then attempted to smuggle plastic bags into his room and urinate in the bags. Defendant found those as well and on each occasion punished Billy. Eventually, Billy took to urinating in his room. That led, of course, to unpleasant odors and to defendant's determination that Billy could not put his smelly clothing into the family washing machine. Billy was thus required to either wash his clothes in a basin in the front yard of the house — so that others would see him and be aware of his problem — or use his own time and money to go to a laundromat and wash his clothes. His need to do that caused him to break his perfect attendance record at school — an approach to Billy's schooling that was consistent with other manifestations of defendant's feelings toward and treatment of her son: although he was a "straight A" student, she denied him opportunities to participate in extracurricular, honor programs for no apparent reason other than a general accusation of bad behavior.
K.M. was a neighbor and friend of defendant. Her testimony and the tape she made of defendant's comments about Billy, also played a prominent role at trial. K.M. testified to defendant's constant disparagement and almost obscene criticisms of her son. Among the milder epithets she applied to him were "faggot," "pig," "slob," "animal," and a "piece of" excrement she could not stand to look at. According to K.M., defendant frequently described her son's allegedly disgusting behavior and the punishments she inflicted upon him. K.M. became so upset by this pattern that she contacted DYFS in an attempt to have that agency investigate the situation. She was initially unsuccessful, but she continued her efforts until she presented DYFS with a tape she had made of a conversation in which defendant demonstrated her contempt for Billy and described her sadistic activities toward him. Among other comments on that tape, interspersed with defendant's expressions of amusement and/or pleasure, was her describing hitting Billy so hard that "his feet come up off the (expletive) floor." She described putting him "in his room for (expletive) weeks." She said he had been "grounded" ninety percent of the time, and she also called him a "creeping little (expletive) boy," "this thing," and said he was not "human." She described, with some apparent amusement, how on one occasion she had told Billy she was going to beat him with a belt after dinner, and, "You never seen a kid eat so (expletive) slow in your life . . . he was that upset. He's out there while he was eating dinner he was shaking. So at least he's got some kind of (expletive) fear in him anyway." And, she said, referring to a beating she had administered, his "little ass should be purple again tomorrow." She also spoke of several other "ass whippings," saying she would have Billy drop his pants so there would be no padding and she could hit his "bare ass."
The tape presented by K.M. induced DYFS to proceed, and an agency representative then spoke to Billy. An examination of his buttocks and thighs showed reddish-purple, raised welts consistent with the use of "a strap."
In addition to her testimony about defendant's comments, K.M. also described her observations. On at least two occasions, she saw defendant "backhand" Billy in the face with such force that it moved him backwards. She also described defendant's visits to her house, when defendant and her daughters would come into the house while Billy was made to stay outside, in the car.
Perhaps as significant as the specific events described on the tape, was defendant's constant insulting and degrading description of her son, whom she seemed to regard as almost sub-human. As noted, that pattern and overall treatment was confirmed by Billy, his older sister, his grandmother and K.M. Additional confirmation of some of the allegations was provided by school authorities and by Billy's father. In her own defense, defendant either denied the incidents or claimed they were exaggerated, justified, or both. She presented some additional witnesses who said they had not seen defendant engage in abusive or sadistic behavior toward her son. The evidence against her, however, was more than overwhelming.
On appeal, defendant makes the following arguments:
N.J.S.A. 2C:24-4A IS VIOLATIVE OF THE RIGHT TO DUE PROCESS BECAUSE PURSUANT TO IT, CONDUCT WHICH IS DEFINED WITHIN THE STATUTE ITSELF AS A FOURTH-DEGREE CRIME MAY BE, AND IN THE INSTANT CASE WAS, PROSECUTED AS A SECOND- DEGREE CRIME. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10. (Not Raised Below.)
THE ADMISSION INTO EVIDENCE OF OTHER CRIMES OR BAD CONDUCT EVIDENCE, WHICH INCLUDED TESTIMONY THAT BILLY HAD BEEN STARVED BY DEFENDANT PREVIOUSLY AND REMOVED FROM HER HOUSE, SEVERELY PREJUDICED THE DEFENDANT AND DENIED HER HER STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 AND 10. (Partially Raised Below.)
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS COUNSEL PUT EXTREMELY PREJUDICIAL PHOTOGRAPHS BEFORE A WITNESS AND THESE PHOTOGRAPHS WERE ULTIMATELY MOVED INTO EVIDENCE BY THE STATE. (Not Raised Below.)
THE PROSECUTOR IMPROPERLY CROSS-EXAMINED THE DEFENDANT BY ATTEMPTING TO COERCE HER TO CHARACTERIZE KEY STATE WITNESSES AS LIARS, IN VIOLATION OF HER RIGHT TO A FAIR TRIAL. (Not Raised Below.)
THE COURT'S INSTRUCTIONS ON THE OFFENSE OF ENDANGERING THE WELFARE OF A CHILD WERE INSUFFICIENT AND DEPRIVED DEFENDANT OF HER RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 AND 10. (Not Raised Below.)
THE FAILURE TO REQUIRE THAT THE JURY MAKE A SPECIFIC FINDING ON THE CHARGE OF ENDANGERING THE WELFARE OF A CHILD, AS TO THE DEFENDANT'S CONDUCT, CAUSED THE POTENTIAL OF A NON- UNANIMOUS PATCHWORK VERDICT IN VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947) ART. I, PAR. 1. (Not Raised Below.)
THE SENTENCE IMPOSED IS EXCESSIVE AND IS UNSUPPORTED BY THE STATUTORY AGGRAVATING ...