On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-09-0991-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Axelrad and Gilroy.
Elijah Kelly died on May 12, 2001, from a massive brain hemorrhage caused by a blow to his head. During the month before he died, Jeremiah Parker and Tauleah Kelly beat and tortured him. Kelly was his mother and Parker was Kelly's boyfriend. When he died, Elijah was four years old.
A Passaic County Grand Jury returned an indictment charging Parker and Kelly with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and fourth-degree cruelty and neglect, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3. In addition, Kelly was charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and third degree-aggravated assault, N.J.S.A. 2C:12-1(b)(7). Kelly pled guilty to second-degree manslaughter and second-degree endangering the welfare of a child. The prosecutor agreed to a maximum prison sentence of seven years with an eighty-five percent parole disqualifier, and in return, Kelly agreed to testify against Parker. A jury found Parker not guilty of aggravated manslaughter and manslaughter, but guilty of second-degree endangering the welfare of a child, N.J.S.A. 24-4(a). The judge imposed a ten-year term of imprisonment with a five-year parole disqualifier, and Parker appealed.
The State concedes that resentencing is required by State v. Natale, 184 N.J. 458 (2005). That leaves three issues for us to resolve: (1) did the trial judge err by permitting the jury to hear other-crime evidence consisting of Parker's physical assaults on Kelly; (2) did the judge fail to provide adequate limiting instructions on that other-crime evidence; and (3) did the prosecutor deny defendant a fair trial by making inflammatory remarks during summation. Our answer is no.
Because Parker does not contend that the jury's verdict was against the weight of the evidence and because of the nature of the issues presented, a brief overview of the facts will suffice.
In March 2001, Kelly, then nineteen, and her four-year old son, Elijah, left California to live with Parker in New Jersey. When Kelly discovered shortly after their arrival that Parker had another girlfriend staying in the hotel in which they were temporarily residing because of a fire at Parker's townhouse in Haledon, she picked up a knife and demanded that he buy airline tickets so that she and Elijah could return to California. He refused, punched her in the face several times, and kicked her. Although the evidence of that beating was not admissible under the judge's ruling, Parker did not object when Kelly so testified before the jury. We infer that there was no objection because Parker's attorney knew he would be presenting the testimony of Parker's other girlfriend, Laytoya McCall, who later testified that she saw Kelly try to stab Parker several times; that he did not strike Kelly; and that there were no marks on Kelly's face after the incident.
After a few days at the hotel, Parker, Kelly, Elijah, and some of Parker's friends and relatives moved to Parker's Haledon townhouse. By early April 2001, the houseguests had departed. Kelly testified that after the guests left, Parker began abusing her and Elijah almost daily until Elijah's death in May.
Kelly testified that Parker bit her on the breast, leaving teeth marks; punched her thigh with his fist; and struck her on the inner thigh with a belt around which he had wrapped an extension cord. Police photographs of the teeth marks and thigh injuries were exhibited to the jury. Once, while she was lying in bed, he stuck her in the back three times with a heated black pin with a little gold knob, causing puncture and burn wounds. These wounds were also photographed and shown to the jury.
Kelly also described Parker's treatment of Elijah during this one-month period. Parker repeatedly punched Elijah and struck him with the belt/extension cord. Parker often used the belt against Elijah in the boy's bedroom. Because Elijah would run around the bedroom trying to avoid the blows, while screaming for the beatings to stop, there were belt marks all over the walls of that room. Parker also repeatedly bit Elijah on the chest and face, on one occasion in retaliation for Elijah biting him on the chest. A police photograph of Parker's chest bite wound was shown to the jury. Although Kelly admitted that she bit Elijah twice, she said that Parker bit him on the face more than sixteen times. Kelly testified that Parker punished Elijah by making him stand in front of a fan, which caused the boy to wheeze and "shake real hard" because he had asthma. On one occasion, she saw Parker holding a pitcher of water and standing in front of a refrigerator in the garage. The freezer door was open, and Parker smiled and threw the water into the freezer. Elijah was "folded up" in the freezer, crying.
On April 20, 2001, Parker and Kelly brought Elijah to the emergency room at St. Joseph's Hospital in Wayne, and told the doctors that Elijah had hurt himself falling down the stairs and was not responding normally. Because of the seriousness of the injuries, the doctors transferred Elijah to St. Joseph's Hospital in Paterson. The doctors identified Elijah's injuries as including a left subdural hematoma and multiple bruises and marks. Dr. William DeBruin, the chief of the pediatric critical care unit, testified that although the hematoma was small and did not greatly concern him, he was troubled by the marks on the boy's body, which he described as "loop marks" of varying ages across his entire head, on his arms, his legs and his back. He told the jury that such marks are almost always inflicted on a child by a beating with a looped object, such as an extension cord or wire coat-hanger. He described Elijah's injuries as "textbook classic" indicators of recurrent abuse.
The bitemarks on Elijah's face were inflicted after this hospitalization.
The Division of Youth and Family Services ("DYFS") was called to the hospital. Kelly told the DYFS representative that she never hit Elijah and that his injuries were caused by a fall down the stairs and a go-cart accident. Parker, on the other hand, told the DYFS representative that Kelly did beat Elijah as punishment. Elijah, however, supported his mother's story, and he was released from the hospital a few days later. A DYFS representative visited the Haledon townhouse several times over the next two weeks, but decided to close the case after Kelly said she and Elijah were returning to California. Parker later admitted to the police that when he learned that a DYFS representative would be coming to the townhouse, he painted over the marks made by the belt on the walls of Elijah's bedroom, switched Elijah's bedroom to a different room down the hall, and threw the belt away.
Kelly testified that on May 12, 2001, she punched Elijah on the back of his head. Although the blow made him dizzy, when she left the townhouse shortly thereafter, he was lying fully clothed on his bed, conscious and dry. She returned a half hour later, found the shirt Elijah had been wearing, which was now soaking wet, in the kitchen, and Parker and Elijah in the boy's bedroom. When Elijah did not respond to her, she asked Parker what had happened, but he did not answer. As they started to go to St. Joseph's Hospital in Wayne, blood poured from Elijah's nose and mouth. When they arrived, Elijah, whose clothes were soaking wet, was unresponsive and limp. After restoring Elijah's pulse and respiration, the staff decided to transport him to St. Joseph's Hospital in Paterson, where he was examined by Dr. DeBruin.
Although Elijah had been resuscitated after suffering cardiac arrest, his brain did not recover, and he was declared dead shortly after Dr. DeBruin's examination. Dr. DeBruin found many new wounds on Elijah's body, including multiple adult, human bite marks; new abrasions; bruising throughout his body; and additional loop marks. A CAT scan revealed cerebral herniation, meaning that Elijah's brain had swollen and bled so much that it had actually moved out of his skull and into his spinal canal. Dr. DeBruin testified that "it takes a lot to cause the type of injury that Elijah had," adding that "he had to [have been] beaten and beaten bad."
Dr. David Kroning, Director of Pediatric Emergency Services and Child Protective Services at the hospital, testified that the "most remarkable" findings of his examination were the crusted bite marks on Elijah's forehead and chest. He also noted the "multiple marks on the hands [and] extremities, the back, and the lower extremities and, again, they were looped in shape and also kind of two linear lines, side by side." He said that the differing ages of the injuries showed that they were the result of an "ongoing process" and not of an isolated event.
Dr. Kenneth D. Hutchins performed the autopsy. In addition to confirming the injuries and the cause of death noted above, he found a rib fracture, and "some pinpoint or punctate, crusted to scab-like lesions over the back of [Elijah's] hands and on his left palm." He compared photographs of Elijah's pinpoint wounds with a photograph of Kelly's pinpoint wounds, and he testified that their characteristics were consistent.
At the hospital, Parker admitted to a prosecutor's investigator that he had "popped" Elijah on the back of his head a couple of times. He demonstrated what he meant by striking his open hand with his fist, generating a loud popping sound. The investigator described Parker as strong and muscular, 6'5" tall, and weighing about 285 pounds. At the time, Parker was playing football for the New York Giants.
A search of the Haledon townhouse revealed, among other things, the walls of Elijah's old bedroom, which now contained no furniture, covered with so many paint-covered belt marks that they could not be counted; a belt in Parker's closet that matched a belt mark found on top of the stairway banister; and a stand-alone fan. It also revealed an operating refrigerator containing a pitcher of water and no shelves. Inside the refrigerator, the investigators found a small handprint on the lower back wall.
We turn to the first issue, whether Judge Subryan erred by permitting the jury to hear the other-crime evidence. After a pre-trial hearing, Judge Subryan found that Kelly was a credible witness. He based that determination, and his further conclusion that the State had met its burden of producing clear and convincing evidence of the prior bad acts, on Kelly's demeanor, buttressed by the photographs; the other physical evidence; and expert testimony. Although there was evidence of numerous other bad acts committed by Parker, Judge Subryan only admitted evidence of these injuries suffered by Kelly: the pinpoint needle wounds on her back; the bite mark on her breast; and the punch and belt marks on her thighs, reasoning as follows:
[T]he burning of Tauleah Kelly's back and shoulder with a heated pin or needle is consistent with the punctate marks present on the hands and palm of Elijah. These punctate lesions are very unusual and distinctive and give rise to a level of signature. These wounds in combination with the bite marks and wounds to the thighs demonstrate a pattern of distinctive abuse.
Judge Subryan admitted this evidence as bearing on identity and intent.
The admission of the evidence in question is governed by N.J.R.E. 404(b), which provides as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
For other-crime evidence to be admissible, it must possess the following characteristics:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [State v. Cofield, 127 N.J. 328, 338 (1992)].
"Evidence of prior bad acts must be relevant not merely to a material issue, but to a material issue that is genuinely disputed." State v. Fortin, 162 N.J. 517, 529 (2000). "For example, if identity is not really in issue . . . it would be improper to justify the use of other-crime evidence on that basis." State v. Cofield, supra, 127 N.J. at 338-39. "The true test [of relevancy] is the logical connection between the proffered evidence and a fact in issue, i.e., whether the thing sought to be established is more logical with the evidence than without it." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990).
The admissibility of other-crime evidence is left to the sound discretion of the trial court. State v. Covell, 157 N.J. 554, 564 (1999). "The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed ...