On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 99-02-00113-J.
The opinion of the court was delivered by: Yannotti, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges Petrella, Lintner and Yannotti.
Defendant James Messino was charged in a Gloucester County indictment with first-degree murder, contrary to N.J.S.A. 2C:11-3a(1)(2) (Count One), and second-degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a (Count Two). Following a trial before a jury, defendant was found not guilty of murder but guilty of aggravated manslaughter and endangering the welfare of a child. The judge sentenced defendant to a custodial term of twenty-two years, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2d. Defendant was sentenced on the endangering conviction to a consecutive term of seven years, with parole ineligibility as prescribed by NERA. Penalties were also imposed. Defendant appeals his convictions and the sentences imposed. We affirm.
This matter arises from the death of D.R. on May 31, 1998. D.R. was born on April 19, 1996. His biological parents were Laurie Roberts and Mimi Mollo.*fn1 Roberts and Mollo ended their relationship before D.R. was born. Roberts met defendant in October 1997. They began dating and, in December 1997, they moved together with D.R. to an apartment in the basement of a home owned by Laurie's aunt, Elaine Roberts.
From the time of his birth, D.R. suffered from an enlarged scrotum resulting from "hydrocele" or fluid around the testicles. D.R. also suffered from a genetic disorder called Hunter's Syndrome, a form of mucopolysaccharidosis (MPS), which is a condition that affects the joints and bones and makes movement of the arms difficult. On May 29, 1998, two days before his death, D.R. underwent surgery to reduce the size of his scrotum. Dr. Michael Louis Nance, a pediatrician at Children's Hospital of Philadelphia, performed the operation. The doctor testified that at the time of the surgery, D.R.'s scrotum was slightly enlarged and bruised and the bruising extended to D.R.'s lower abdomen. Nance stated that he observed blood in the tissues surrounding D.R.'s scrotum, which he had never seen when performing a hydrocele reduction procedure. Nance said that D.R.'s platelet count was normal. The child's blood clotting ability also was normal. Nance stated that the incision made during the operation was not near D.R.'s mesentery, the fibrous tissue that holds the small bowel in place and supplies blood to the bowel. D.R. was discharged from the hospital on May 30, 1998.
After D.R.'s release from the hospital, Roberts and defendant left D.R. at the home of Jean Mangini, Roberts' aunt. Roberts and defendant went home and went to sleep. D.R. was brought home around 9:30 in the evening. Roberts testified that defendant put D.R. to bed around 10:30 p.m. While D.R. slept, Roberts and defendant watched rented movies.
Around 5:30 a.m., the phone rang and D.R. was awakened. Roberts picked up D.R. to calm him and then she handed the child to defendant, who said he would put D.R. back to bed. Roberts went upstairs to the bathroom and, while she was in the bathroom, Roberts heard D.R. cry out. Roberts testified that she went back downstairs and asked defendant why D.R. had cried out. Defendant said that D.R. did not want to go to sleep. Roberts and defendant went to bed, but shortly thereafter Roberts heard D.R. making a gagging sound. She went to the child and saw that his body was "clenching and unclenching." Roberts thought that D.R. was having a seizure. Roberts and defendant called 911.
One of the paramedics who responded to the call testified that when he arrived at the apartment, D.R. was tossing, turning and crying. The paramedic said that D.R. looked pale and sickly. The initial physical check indicated that D.R. was in shock and he appeared to be bleeding internally. D.R.'s abdomen was distended and, according to the paramedic, there was a "very, very black and blue" bruise on the child's right flank. He stated that the bruise was round, oval-like and about three to four inches in diameter. D.R.'s testicles were "purplish," like a black color and "grossly swollen."
D.R. was taken to Kennedy Memorial Hospital. Dr. Frank J. DeMartino was the attending physician in the emergency room. He stated that, when he was brought in, D.R. was in a "very grave clinical state." He also observed the swollen testicles and a fair amount of bruising to the child's right flank. DeMartino asserted that D.R. was losing blood and the blood was collecting in the child's testicles, the abdominal area and the flanks.
Anita Brown, a registered nurse who attended to D.R. in the emergency room, testified that D.R. was "still and unresponsive" when he was first brought to the hospital. She noticed that D.R. had a huge bruise on the lower right abdomen, that was larger than a grapefruit and round in shape. Brown also noticed that D.R.'s scrotum was swollen and appeared to be filled with blood. Brown approached defendant and she asked him what happened but defendant did not reply. Brown testified that defendant was "very pale and very quiet." The medical personnel worked for an hour-and-a-half to resuscitate D.R. Their efforts failed and D.R. died.
An autopsy was performed at Children's Hospital of Philadelphia. Dr. Paul Hoyer, the assistant medical examiner for Gloucester County, testified that the autopsy revealed that the surgical incision that had been made in the hydrocele procedure was open and gaping. The autopsy also revealed that about a quart of blood had collected in D.R.'s abdominal cavity. Hoyer observed a four-inch tear of the child's mesentery. He testified that in his opinion the tear had been caused by a "large blunt force," such as from a forceful kick or punch, a car accident or a fall from ten or fifteen feet. Hoyer also observed the bruise on D.R.'s abdomen and concluded that the child's death might be the result of child abuse and homicide. He asserted that D.R.'s death was not a "metabolic death." The cause of death was "hypovolemic shock."
Evidence also was presented at trial concerning injuries that D.R. had sustained in the months preceding his death. On February 2, 1998, D.R. was brought to Dr. Jeffrey P. Kovacs, an orthopedic surgeon, because he was having problems with a cast placed by another doctor to treat a fracture in D.R.'s left tibia. Kovacs examined D.R. and observed that the child's left upper thigh was "massively swollen." He found signs of a spiral fracture in D.R.'s left femur. The femur fracture was about a week old. The tibia fracture had been sustained about a month before the office visit. Kovacs testified that Roberts' vague account of the injuries made him suspect that she was not telling him the full story. Kovacs stated that it is uncommon to see two fractures in the same leg within a one-month period. Such an occurrence, he said, is "one of the hallmarks of child abuse." Kovacs opined that D.R.'s fractures were not "pathologic fractures" related to the child's MPS.
Dr. Paige Kaplan, head of the Biochemical Genetics Unit at Children's Hospital, treated D.R. in February 1998. She also concluded that D.R.'s fractures were not causally related to MPS.
Dr. Cindy Christian testified that she saw D.R. when he was admitted to Children's Hospital in February 1998. She consulted Kaplan who confirmed that there is no association between MPS and bone fractures. Christian stated that she became convinced, to a reasonable degree of medical certainty, that D.R. was a victim of child abuse. She asserted that, when D.R. was brought to the hospital on May 31, 1998, his platelet count was normal and he had no problem with blood clotting. Christian stated that a clotting problem was not the cause of the child's death. She also stated that the hemorrhaging in D.R.'s stomach was caused by the tearing of the mesentery. She asserted that such a tear could not have been caused by dropping a child of D.R.'s size ten inches onto a bed railing.
Dr. John Gregg is a pediatric orthopedic surgeon at Children's Hospital. He treated D.R. in February 1998 for the multiple fractures. Gregg testified that D.R. had normal bone density and his bones were not especially brittle. The child also did not have a problem with blood clotting. Dr. Gregg testified that, based on his observations, there was no doubt that D.R. had been physically abused.
The police commenced an investigation shortly after D.R.'s death. Roberts and defendant both agreed to accompany the investigating officers to the prosecutor's office for interviews. Defendant rode with Detective Sergeant Richard O'Brien. When he arrived at the prosecutor's office, defendant was taken to an interview room. Defendant was given a copy of the prosecutor's rights form and he was asked to read it aloud. Defendant did so and agreed to give a statement.
O'Brien and Investigator Kenneth E. Crane interviewed defendant and took a taped statement in which defendant stated that when D.R. awoke on the morning of May 31, 1998, Roberts attended to D.R. while he went outside to smoke a cigarette. When defendant came back into the apartment, Roberts handed him the child and she went upstairs to the bathroom. Defendant said that D.R. was screaming because he did not want to part with his mother. He said that when Roberts returned, D.R. quieted down. After defendant went to bed, D.R. began making a heaving sound. Roberts thought D.R. was having a seizure and called 911.
During a break, Sergeant Alex Illas informed defendant that what he and Roberts told the police did not "add up." Defendant said that he wanted to smoke a cigarette. Illas accompanied defendant outside, where defendant asked Illas, "Do you think I need a lawyer?" Illas told defendant that it was his responsibility to tell defendant that he had a right to have a lawyer, but "that was his call." Defendant said, "What is going to happen to me if I tell you what happened?" Defendant became tearful and told Illas that he had dropped D.R. and D.R. struck the side of the bed.
In a second taped interview, defendant said that when Roberts went up to the bathroom, he attempted to put D.R. on the bed by holding the child with both hands, one on each side of the abdomen. According to defendant, D.R. squirmed in his hands, slipped from his right hand and fell. Defendant said that the child fell about one or one-and-a-half feet. Defendant asserted that D.R. hit the bed railing against his upper chest. Defendant said that he placed D.R. on his bed. According to defendant, D.R. cried at first and then ...