On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-01-0018.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, Graves and Sabatino.
On October 14, 2005, following a jury trial, defendant M.S. was acquitted of the murder of her son, Daniel, who was born on September 7, 2001, but she was convicted of the lesser-included offense of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4 (count one). Defendant was also convicted of second-degree endangering the welfare of her son, Daniel, N.J.S.A. 2C:24-4 (count two), and second-degree endangering the welfare of her son, Joel, Daniel's twin brother, N.J.S.A. 2C:24-4 (count three). Co-defendant A.S. (defendant's paramour) was charged in the same indictment with two counts of second-degree endangering the welfare of a child, but he was not tried with defendant. Defendant was sentenced to serve a twenty-three-year prison term, subject to the eighty-five percent parole bar of the No Early Release Act, N.J.S.A. 2C:43-7.2. On count two, the court imposed a concurrent seven-year prison term, and on count three defendant was sentenced to a consecutive eight-year term. Appropriate fees, penalties, and assessments were also imposed.
Defendant presents the following arguments on appeal:
THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO SEVER THE COUNTS OF THE INDICTMENT RELATING TO DANIEL FROM THE COUNT RELATING TO JOEL, THEREBY DENYING THE DEFENDANT A FAIR TRIAL.
THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING UNPROVEN ALLEGATIONS OF DEFENDANT'S ALLEGED PRIOR ABUSE OF DANIEL.
THE JUDGE MISINFORMED THE JURORS THAT THEIR ROLE WAS TO DETERMINE THE "GUILT OR INNOCENCE" OF DEFENDANT, THEREBY REDUCING THE STATE'S BURDEN IN PROVING DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
After considering these arguments in light of the record and the applicable law, we affirm.
Defendant was the mother of twin boys, Daniel and Joel, who were born on September 7, 2001. Their father was A.S. Defendant was also the mother of Carlos, who was four years old at the time of the twins' birth.
The twins were delivered by Cesarean section. Although defendant's health was fine immediately after the surgery, the next day she developed acute respiratory distress syndrome, a serious disease with a thirty-five to forty-percent mortality rate. Defendant was intubated to help her breathe, and to stop her from pulling out the tube, she was put in a medically-induced coma. She remained in the coma until September 26, 2001, and she was released from the hospital on October 2, 2001. Defendant's parents took care of the children while she was hospitalized.
On October 15, 2001, Dr. Kemi Alli, a pediatrician, examined Daniel and Joel during a well-baby visit. Dr. Alli found nothing medically unusual in either child, and defendant did not mention any incidents in which the children might have been hurt.
On October 18, 2001, defendant took Daniel to the emergency room at Capital Health Systems, because he "seemed to have discomfort in [his] right left." Daniel was transferred to Children's Hospital in Philadelphia where he was seen by Dr. Cindy Christian, a pediatrician and the director of the Child Abuse Program. After performing an examination and reviewing a series of "x-rays and CAT scans and MRIs," Dr. Christian determined that Daniel had two skull fractures, multiple rib fractures on both sides of his chest, and a fractured femur. Dr. Christian estimated the skull fractures were two weeks old, but she estimated Daniel probably "broke his leg sometime on or about October 17th," and the rib fractures were "new." Dr. Christian also concluded the injuries were the result of "repeated trauma and injury." When Dr. Christian examined Joel, she determined he also had skull fractures on both sides of his head and fractures of two ribs. Dr. Christian estimated Joel's head injuries were less than three weeks old, and she diagnosed him with "inflicted injury."
On October 23, 2001, defendant gave a statement to Ewing Township police. In her statement, defendant explained that on October 12, 2001, she was holding both babies in her arms when she went to take a shower. Joel fell into the tub and hit the back of his head; when she bent down to pick him up she blacked out, causing her to drop Daniel outside of the tub. Then her entire body fell on top of Daniel. She did not seek medical help at the time because both babies seemed fine. However, at defendant's trial Dr. Christian testified that defendant's statement to the police was not consistent with the injuries suffered by the children because her statement did not "explain all of the injuries to the babies," especially Daniel's broken leg, which "was broken on or about October 17th when the baby became symptomatic of a broken femur."
After receiving a referral from Dr. Christian, the Division of Youth and Family Services (DYFS) placed the three children in foster care because defendant's parents were unsuitable for placement. Initially, all three children were placed in the home of a family friend, but shortly thereafter they were placed with the Cruz family. Daniel had acute bronchitis and asthma while with Cruz family, but the children were healthy otherwise. Ms. Cruz denied that Carlos was rough with his brothers.
While the children were residing with Ms. Cruz, defendant worked with DYFS and their contracted agent, the Children's Home Society (CHS), toward reunification. Carlos was reunited with his mother in October 2002, and the twins were reunited with her in December 2002.
On March 25, 2003, defendant called emergency medical technicians saying that Joel had fallen and was having difficulty breathing. Defendant told EMT Tara Holbrook that she found Joel "on the landing at the bottom of the stairs crying." Holbrook found Joel in an upstairs bedroom with a bruise above his right eye, abrasions over his left eye, and "a severe bruise to his right thigh." Joel was admitted to the Robert Wood Johnson Hospital and, based on Joel's hospital records, Dr. Elizabeth Hodgson, the co-medical director of the Dorothy B. Hersh Regional Child Protection Center, testified that Joel's injuries were inconsistent with a fall down the stairs.
On June 4, 2003, shortly after 8:00 p.m., James Lewis of the East Windsor Police Department received a 911 call from a "very excited" person from defendant's home phone number. The caller said that a baby, later identified as Daniel, was not breathing. Lewis attempted to instruct defendant on CPR, but was never able to determine whether the child was breathing.
Ms. Pineda, a friend and former relative of defendant's, lived in the same apartment complex. According to Pineda, at 8:15 p.m., she received a call from defendant, who was screaming. Pineda immediately went to defendant's apartment and found Daniel on the counter of the bathroom with defendant breathing into his mouth. Daniel looked purple. Defendant had the phone in her hand but then handed it to Pineda and, as the operator told Pineda what to do, she relayed the instructions to defendant. Pineda never saw defendant doing a chest compression on Daniel. Pineda testified ...