On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-04-00254-I.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin, Lefelt and Seltzer.
Defendant Edward Roman is serving a twenty-seven-year prison term for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser included offense to murder, of his seven-week-old son, Edward Jr. On appeal, defendant argues that Judge Carmen Alvarez erred by failing to (1) suppress defendant's statement given at the hospital; (2) suppress defendant's September 26th statement given at the prosecutor's office; (3) sever the murder charge from the remaining charges of aggravated assault and endangering the welfare of Edward Jr. and Edward's twin; and (4) instruct the jury that they could not consider evidence presented in support of the aggravated assault and endangering charges as evidence of murder. Defendant further argues that additional error occurred when (5) the court allowed the prosecutor to cross-examine defendant on the details of his past burglary conviction and related statement, which defendant had given to a detective; (6) the prosecutor committed misconduct from opening through summation; (7) trial counsel rendered ineffective assistance, by failing to seek severance of the charges, to seek limiting instructions regarding the charges, and to object to the prosecutor's misconduct; (8) the court allowed Dr. Lind to testify about the cause of Edward Jr.'s death; and (9) the court imposed an excessive twenty-seven-year imprisonment term.
We have reviewed each of these arguments in light of the record and pertinent law and have concluded that none of the arguments warrant reversal of defendant's conviction or sentence, and that points (1) and (3) through (5) and (7) through (9) are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). Consequently, in this opinion, we discuss only defendant's argument (6), dealing with the prosecutor's alleged misconduct, and defendant's argument (2), claiming that the trial court erred, under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), when it denied defendant's motion to suppress his September 26th confession, which was obtained despite defendant's request to speak with his parents.
Here is what happened. Defendant and his girlfriend, Melanie Holton, were the parents of twin seven-week-old boys. Holton, the grandparents, and the babies' godfather and defendant's best friend, Michael Wilkins, all testified that defendant appeared, before the unfortunate incident to be a loving, protective, and fully involved parent of the newborns.
On September 23, 2001, however, defendant was baby-sitting the newborns while Holton was shopping with a friend. While the newborns were in defendant's care, Edward Jr. died. Defendant's initial version of the death, which he provided during a 9-1-1 call and thereafter at the hospital, was that Edward Jr. fell off a couch while defendant was assisting the other twin.
An autopsy revealed, however, that Edward Jr. died from multiple skull fractures, hemorrhaging, front subdural bleeding and a swelling of the brain that was allegedly caused by blunt force to two different parts of his head. The autopsy also revealed twenty-seven fractures of the newborn's ribs in various stages of healing. An examination of the other twin disclosed seventeen rib fractures also in different stages of healing. Consequently, during the investigation of Edward Jr.'s death, the Division of Youth and Family Services temporarily removed the other twin from the care of defendant and Holton.
On September 25th, the prosecutor's office followed up on some statements taken at the hospital and further interviewed defendant and Holton. During this interview, the officers were informed that Holton's parents had retained an attorney to represent the couple. The attorney requested that the police stop interviewing defendant and Holton and inform the couple that he advised them to stop speaking with the police. The officers informed defendant of the representation and gave him the lawyer's phone number.
At trial, the officer could not recall whether he had also informed defendant of the attorney's advice to stop speaking with the police. Defendant testified at trial that after being given the attorney's phone number he asked the officers what the attorney had said. The officers allegedly responded that they did not know, but if defendant did not do anything wrong, he did not need an attorney.
In any event, one of the officers asked defendant whether he wished to continue speaking with them and defendant agreed by signing a "Reed Advisory."*fn1 Defendant also signed a Miranda Warning and Waiver of Rights form and continued speaking with the police until counsel arrived, when defendant exercised his right to remain silent.
That night, one of the investigators received a message from defendant's father on his home answering machine. Defendant's father and the investigator knew each other and had a social relationship. When the investigator called back, defendant's father asked the whereabouts of his son and "what was going on." The investigator explained that "everything was going fine with the questioning and they had a few more questions to answer, but the lawyer stopped it all" and that defendant "should come back and finish his statement." The investigator told the father that "the autopsy wasn't matching up with the questioning of . . . the statements that [defendant] was making." Defendant's father told the investigator that his son wanted to return to clear everything up. Defendant's father asked how his son could come in or continue the statement. The investigator advised defendant's father that his son "ha[d] a right to hire a lawyer and . . . a right to fire a lawyer[.]"
Later that evening, defendant came to his parents' home seeking advice. Apparently trusting the investigator, defendant's father told defendant to go back the next day and finish the statement without the attorney. Defendant also spoke with his friend, Wilkins, who also encouraged defendant to go back and continue the statement.
The next day, September 26th, defendant fired his attorney and reported to police headquarters where an investigator and detective continued defendant's interrogation. Defendant received Miranda warnings and waived his right to an attorney, expressing his desire to revoke the previously asserted right to remain silent and continue with his statement.
Defendant began his statement by discussing the details of the children's birth, development, and care. The investigator was impressed with defendant's knowledge of his children and suspected, at that time, that defendant was a very involved, interested parent. When asked about the events of September 23rd, defendant repeated his original explanation of the incident. But, this time, the investigator confronted defendant with the autopsy report and said there were "two kids in your house who are seven weeks old. One kid is dead and the other kid is following the same path, got multiple injuries." Considering "the autopsy, it didn't happen the way you said it. Now there's something very wrong here and this is what we need to talk about." The investigator explained that the baby "could not get injuries . . . more than one head fracture[,] from one fall," by falling off a couch of that height. At this point, "the tenseness in the room was ratcheted up."
Defendant then decided to tell the investigator something he "really never told" anyone and divulged the following second version of the incident: "in his haste to save the baby," after Edward Jr. had fallen from the couch, "he had picked the baby up and had run toward the bedroom where he was going to do CPR. But, in his haste, he tripped and the baby fell out of his arms and now he hit the floor." When questioned about the newborn's old injuries, however, defendant could not provide any credible explanation. The investigator was not impressed with the second version and kept pressing defendant, who then came up with a third version of the incident.
In the third version, defendant stated that, when he dropped the baby, "he actually slid across the floor and he hit the wall with some force." The investigator again expressed his disbelief, but did not threaten, coerce, or scream. In fact, throughout the examination, the investigator claimed to have treated ...