On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-12-1738-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Decided Argued May 5, 2009
Before Judges Collester, Graves and Grall.
These back-to-back appeals arise from the convictions of F.B. and K.B., husband and wife, for injuries suffered by their adopted son, J.B. Defendants were indicted on December 16, 2004, and charged with second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count one); second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (count two); and second-degree conspiracy, contrary to N.J.S.A. 2C:5-2 (count three). On April 4, 2005, following voir dire of each defendant, Judge Phillip L. Paley granted defendants' motion for the same attorney to represent them at trial. Prior to trial, the court granted the State's motion to dismiss the conspiracy count against both defendants as well as count one charging second-degree aggravated assault against F.B.
On March 27, 2006, the day before trial was to begin, defendants moved to waive a jury and have the matter proceed as a bench trial. Judge Dennis V. Nieves, the trial judge, denied the motion. The jury trial began the next day and ended on May 4, 2006. K.B. was found guilty of second-degree aggravated assault and both K.B. and F.B. were found guilty of endangering the welfare of J.B. by failing to provide adequate medical care. K.B. was sentenced to a custodial term of five years on the aggravated assault count with eighty-five percent parole ineligibility under the No Early Release Act (NERA) and a concurrent five-year term for endangering J.B.'s welfare. In sentencing F.B. on the endangering conviction, Judge Nieves downgraded the second-degree conviction and sentenced F.B. as a third-degree offender to a term of three years. Both defendants appeal their convictions, and K.B. also appeals her sentence.
Defendants were married in 1996. A year later they moved to Milltown with the intent of starting a family, but their hopes were frustrated because K.B. had difficulty conceiving. She was referred to a fertility specialist and became pregnant by in vitro fertilization. Her pregnancy was difficult and dangerous. After twenty-nine weeks, she gave an induced premature birth to a son, S.B., on March 17, 2001. S.B. weighed only two pounds at birth and remained in the hospital for four months until he went home with his parents in September 2001.
Prior to her pregnancy, K.B. was employed full-time as a registered nurse at Robert Wood Johnson University Hospital. After S.B.'s birth, she returned to work as a per diem nurse. K.B. and F.B. wanted S.B. to have a sibling, but K.B.'s doctor advised her against another pregnancy. They decided to adopt a child. K.B. learned from hospital co-workers that it was possible to adopt a baby from Korea through an international adoption agency. After considerable time and expense, their application for adoption was approved. On May 6, 2004, they took custody of a four-month-old boy they named J.B.
F.B. worked a daytime job as a customer representative with Johnson & Johnson, and K.B.'s hours at the hospital were normally 11 p.m. to 7 a.m. Accordingly, they arranged for daycare for S.B. and J.B. at the home of L.H., who ran a daycare business out of her home in Fords. Typically, they used L.H.'s services one to three days a week depending upon K.B.'s work schedule. When K.B. worked the nightshift, F.B. would take the children to L.H.'s home. When K.B. returned from the hospital, she would sleep for a time and then pick up the children and return home and feed them dinner.
K.B. testified that S.B., then three, was jealous of his new baby brother. He began acting aggressively toward J.B., taking his toys, attempting to go into his crib, and punching and kicking him on occasion. K.B. discussed the matter with the children's pediatrician, and she was told to closely supervise the children and not leave them alone. K.B. passed on this information to L.H.
On September 13, 2004, K.B. took J.B. to the pediatrician for a regular appointment. She reported no health-related complaints regarding J.B., and the pediatrician saw no signs of injury or abnormality. The following night K.B. worked the nightshift at the hospital. That night, September 14, was especially stressful for K.B. because a patient "coded" and nearly died until K.B. and others were able to resuscitate him.
K.B. then returned home at 9 a.m. and slept for about six hours.
F.B. had dropped off the children at L.H.'s house in the morning of September 15, 2004. L.H. had last watched the two children on September 10. On September 15 she watched two other children and one of her grandchildren. She said that J.B. was fine and not irritable. She did not observe any other child including S.B. injure J.B. that day. She also denied injuring him herself.
K.B. picked up S.B. and J.B. at about 5:30 p.m. She said that J.B. "looked fine." She returned home about 6 p.m., fed J.B., changed his clothes and put him to bed in the crib in the master bedroom where he fell asleep. At about this time F.B. returned home from work. K.B. then went out to buy a pizza and rent a movie. At about 10:30 p.m. after watching the movie, K.B. and S.B. went to sleep in the master bedroom. As was his habit, F.B. slept downstairs on a couch in the living room because of his snoring.
K.B. testified that although J.B. was a "good sleeper" and would normally sleep through the night, he woke up about 12:15 a.m. and was crying hard. J.B.'s crying woke up S.B. who also began to cry. F.B. came into the bedroom and told K.B. to go back to sleep with S.B. and he would take care of J.B. F.B. said he took J.B. downstairs and sat with him on the couch. He tried to give J.B. a bottle, but J.B. took only about two sips. When J.B. continued to be fussy, F.B. gave him a dose of Tylenol with codeine, which had been previously prescribed for J.B. following his circumcision. F.B. then turned off the lights and fell asleep on the couch with J.B. After about an hour and a half he was awakened by J.B. pulling on him and he returned J.B. to his crib. He estimated the time at about 3 a.m.
Between 5 and 5:30 a.m., K.B. was awakened by J.B.'s crying in the crib. She said that he felt a little warm and sweaty, so she took his temperature, which was normal. She noticed what she believed to be a bump or nodule in his ribcage. She gave J.B. back to F.B. and went back to sleep.
F.B. said that he wrapped a blanket around J.B. and put him on a sofa in the basement while he slept on the sofa upstairs. When he heard J.B. at about 7:30 a.m., he went downstairs to check on him. He noticed that J.B.'s eyes were puffy and that something was "not right" with him. Meanwhile, K.B. was changing the sheets in the master bedroom because S.B. had wet the bed. F.B. called to her and said there was something wrong with J.B. K.B. said as soon as K.B. looked at J.B., she knew it was a serious situation. J.B. was unresponsive, his left eye was swollen shut, and his limbs were limp. K.B. took his temperature, which was 101˚. She feared that the baby had meningitis or was having an allergic reaction to a recent vaccination. She told F.B. to call the pediatrician's office. After a time when the pediatrician did not call back, K.B. told her husband that they should go to the hospital. They took S.B. to his paternal grandparents' house about two blocks away and drove to Robert Wood Johnson University Hospital with J.B.
Dr. Amanda Pratt was the on-duty emergency room pediatrician when J.B. was brought into the hospital between 8:45 a.m. and 9:00 a.m. on the morning of September 16. Pratt testified defendants told her the infant had been unresponsive since early that morning and had been irritable during the night. F.B. told Dr. Pratt that he had given J.B. a dose of Tylenol with codeine during the night. K.B. was unaware that F.B. had given the baby Tylenol until that moment. Dr. Pratt was concerned because J.B.'s left pupil was large and not reacting to light, and his extremities were stiff. J.B.'s temperature was 102˚.
Dr. Pratt then ordered a CAT scan because she suspected that J.B. had a sustained a brain injury. The CAT scan performed at 9:10 a.m. disclosed a skull fracture and a left frontal subdural hematoma that caused a seven millimeter midline shift of the brain. Dr. Pratt felt the CAT scan findings were indicative of non-accidental trauma, and she admitted J.B. to the pediatric intensive care unit.
An MRI of the baby's head was performed shortly after 10:30 a.m., and it revealed that J.B. had suffered a stroke. J.B. was examined at about 11:30 a.m. by Dr. Steven Choi, a pediatric critical physician. Dr. Choi observed that J.B. had a large swollen area on the back of his skull and significant swelling over his left eye. His breathing was labored, and his heart rate was dropping because of increased swelling in the brain. Dr. Choi placed J.B. on a ventilator, and Dr. Michael Nosko, a neurosurgeon, was brought in for a consultation.
When J.B.'s heart rate began to drop precipitously, Dr. Nosko performed an emergency craniotomy. He took out part of J.B.'s skull bone in order to remove a blood clot from the subdural space. He observed that J.B. had sustained an infarction, or stroke, in the posterial cerebral artery. Dr. Nosko opined that J.B.'s injuries were the result of an impact or blow to the back of the head which caused the child's brain to twist inside the skull, resulting in bilateral contrecoup contusions. He said a "reasonably strong force" caused the injuries and that symptoms of the injuries would appear almost immediately. It was his opinion that the injuries occurred in a period from less than one hour up to twelve hours before the time of the initial CAT scan. He testified that the injuries could not have occurred prior to 5 p.m. on the preceding day because the first CAT scan did not show evidence of a stroke.
After the surgery, J.B. was returned to the pediatric intensive care unit. Dr. Choi ordered a skeletal x-ray survey which disclosed a healing rib fracture.
In Dr. Choi's opinion J.B. was the victim of child abuse. He said the skull fracture and subdural hematoma were not caused by an accident but by the child's head being thrown against a hard object or having a hard object strike his head. In response to a question from the prosecutor, Dr. Choi said that based on his experience a three-year-old child would not have the strength to cause the injuries sustained by J.B.
The Division of Youth and Family Services (DYFS), and the Middlesex County Prosecutor's Office were notified of suspected child abuse. Investigator Randi Colatrella responded to the hospital and met with Dr. Choi. She said that he told her that J.B.'s injuries occurred one to three hours prior to arriving at the hospital and that he suspected child abuse. Investigator Colatrella then met with the parents, who agreed to accompany her and Detective Raj Chopra to the prosecutor's office a few blocks away. K.B. and F.B. were separately interviewed. Their statements were recorded on video and audio and were played to the jury as part of the prosecutor's case.
In her statement K.B. related the events of September 14 and 15, beginning with her "horrible night" at the hospital because someone "coded" on her. At one point she described herself as "a nurse with sleep deprivation." She said that after arriving at the hospital that morning and being told that J.B. had suffered a fractured skull, she wondered, "How the hell did that happen?" When asked what she thought was the cause of the injury, K.B. replied, "My only thought would be S.B." She said that she and her husband had problems with S.B. being "really rough" with J.B., hitting him with toys, kicking him, pushing him to the ground and trying to suffocate him. However, she said at no point during the night of September 15 and the morning of September 16 was S.B. alone with J.B. During the interview K.B. disclosed that she suffered from anxiety and depression since childhood and was seeing a psychiatrist for depression and panic attacks. She was taking Paxil for these problems.
In his statement, F.B. said there were sibling rivalry issues between J.B. and S.B. and that S.B. was too rough with J.B. but he did not think S.B. caused the injury. When asked whether he had any prior interaction with DYFS, F.B. told the investigators of an incident in April 2004 when he left S.B. in the car while purchasing a headlight at the store. Someone contacted the police when they saw S.B. alone and crying in the car.
After the interviews, the detectives obtained a search warrant for defendants' home in Milltown. When they entered the master bedroom, they saw the baby crib in the far left corner.
They also noticed a five-inch wide indentation on the left side wall with a crack in the paint and a hair sticking straight out of the wall. It was later stipulated that the hair came from J.B. Investigators Colatrella and Chopra measured the distance between the dent in the wall and the floor and determined it was between sixty-four and sixty-eight inches. K.B. is sixty-four inches tall while F.B. is seventy-one inches tall.
On September 22, 2005, Investigators Colatrella and Chopra and three uniformed police officers went to defendants' home to arrest them. When K.B. was told she was under arrest, she asked if her husband could attend to S.B. The police responded that her husband was also being arrested. K.B. then said, "You're arresting [F.B.] also? Why are you arresting [F.B.]?"
J.B. remained in the pediatric intensive care unit for a week. He was then transferred to another wing of the hospital where he also remained until he was discharged a week later.
Dr. Petr Ruzicka, a pediatric neurosurgeon at Robert Wood Johnson University Hospital, assumed care of J.B. after his surgery. He said J.B.'s injuries consisted of a skull fracture, subdural hematoma, a stroke, and a torn transverse sinus. Ruzicka concluded that the injuries were caused by a "significant force" to the head and that the injuries occurred "within hours of arrival at the hospital." He said he would have expected that J.B. would have started exhibiting symptoms soon after the physical trauma, beginning with irritability and progressing lethargy, stupor, coma and unstable vital signs. Addressing the timeline, Dr. Ruzicka opined that this injury would have happened after J.B. was picked up from the babysitter, after he ate dinner and after he went to bed. In his opinion the injury would have occurred within two to five hours before presentation in the emergency room and most likely within two to three hours.
The State also offered Dr. Sudipta Roychowdhury, a neuroradiologist, who examined the CAT scan and MRI. He concluded that the child suffered a right occipital skull fracture and adjacent large scalp hematoma which in turn caused the infant's brain to shift to the front of the skull. In his opinion the injuries and the resultant stroke were caused by a powerful blow to the back right portion of the skull. He said the injuries and the bleeding were acute, meaning that they occurred anywhere from a few hours to three days prior to admittance. However, based on the failure of the CAT scan to show the stroke, he said the latest the injuries could have occurred would have been about 3 a.m. on September 16 and the earliest approximately 9 p.m. on September 15, or between six and twelve hours prior to the CAT scan.
Dr. Jonathan Arden, a forensic pathologist, testified as an expert witness on behalf of the defendants. He reviewed the police reports, the medical reports, and the MRI and CAT scans. He said that on the MRI the subdural hemorrhage was brighter than the brain substance, meaning that J.B. suffered a "slow bleed." He concluded that J.B.'s injury was subacute and that it had occurred between one and four days, most likely two to three days, prior to the September 16. Dr. Arden also said that because the bleeding was slow, J.B. initially did not exhibit any symptoms because they would substantially progress only after enough volume of blood put direct pressure on the brain. Therefore, he saw no contradiction between J.B.'s "rapid decline" on September 16 and the injury occurring more than twenty-four hours earlier. He opined that given the medical evidence and the facts of the case, it was impossible to determine whether the injury was accidental or non-accidental. He testified that he viewed defendants' master bedroom and did not see a dent in the wall but only a small area where a chip of paint had come off, which was consistent with a "nail pop," or the house settlement. He concluded that J.B.'s head did not strike the bedroom wall.
Defendants also offered Dr. Noble Thompson, a neuroradiologist, who examined the CAT scans and MRI tests as well as the reports prepared by the various physicians. According to Dr. Thompson, J.B. suffered a massive blow to the right back of his head which resulted in a fracture and bleeding on the left side and a shifting of the brain, which in turn caused the stroke. He stated that while he originally saw no signs of a stroke on the copies of the CAT scan, when he reviewed the original film, he could see subtle evidence of a stroke. He concluded that the subdural hemorrhage was not hyper acute or acute because the color of the injury on the MRI was white rather than grey. Therefore, he concluded that the injury occurred more than forty-eight hours prior to the MRI. He also added that he had seen cases where children act normally even though they have had a subdural hematoma.
K.B. testified on her own behalf and presented a character witness. F.B. did not testify.
Following her conviction and sentence, K.B. appeals and sets forth the following arguments for our consideration:
POINT I - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO WAIVE A JURY TRIAL.
POINT II - THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY PRECLUDING DEFENSE COUNSEL FROM ARGUING ALTERNATIVE THEORIES OF ORIGIN OF INJURY IN SUMMATION.
POINT III - THE PROSECUTOR COMMITTED PLAIN [ERROR] IN SUMMATION BY ARGUING THAT THE DEFENDANT'S ORAL STATEMENTS SHOWED CONSCIOUSNESS OF GUILT. (Not Raised Below.)
POINT IV - THE "REBUTTAL TESTIMONY" OF INVESTIGATOR CHOPRA PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below.)
POINT V - IMPROPRIETIES IN THE PROSECUTOR'S SUMMATION PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not Raised Below.)
POINT VI - THE COURT'S FAILURE TO GIVE AN APPROPRIATE JURY INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE RESULTED IN PLAIN ERROR. (Not Raised Below.)
POINT VII - THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.
POINT VIII - THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING BASE SENTENCES OF 5 YEARS ON THE DEFENDANT'S CONVICTIONS FOR SECOND DEGREE AGGRAVATED ASSAULT ON COUNT ONE AND SECOND DEGREE ENDANGERING THE WELFARE OF A CHILD ON COUNT TWO BECAUSE THE DEFENDANT SHOULD HAVE BEEN SENTENCED TO A DOWNGRADED TERM FOR A CRIME OF THE THIRD DEGREE.
Both K.B. and F.B. argue that the trial judge abused his discretion in denying their motions to waive a jury trial because of the inflammatory nature of the case, the scientific complexity of the evidence, the length of the trial, and the fact that the trial involved joint defendants. The State responds that there was no abuse of discretion by the court because the evidence was not unduly complicated and that defendants' waiver of a jury trial was a tactic to gain an advantage at a bench trial since the trial judge was aware of a decision in the Family Part holding that defendants' parental rights were not terminated following a hearing on a Title 9 abuse and neglect complaint filed by the State.
The trial judge found that the defendants voluntarily, knowingly, and competently waived their right to a jury, but he denied the motion for a bench trial. He noted the severity of the second-degree charges and that a guilty verdict against K.B. on the aggravated assault count would require that eighty-five percent of the sentence be served under NERA. While he recognized the emotional atmosphere inherent in the case, he believed the voir dire process was sufficient to ensure a fair jury. He also found that the jury could properly evaluate medical testimony when aided by the instructions of the court. Moreover, he was concerned that his knowledge of the decision of the Family Court judge could affect his impartiality in a bench trial. He stated:
[T]he fact that this matter was tried in a civil proceeding . . . before another judge and that judge made a certain ruling on this case gives one of the parties an advantage, and that's not right. And that weighed heavily on my mind . . . .
But [the judge] did hear this matter previously, and, of course, I have the utmost respect for her. I also know that I can agree to disagree . . . . But the fact that she did hear this matter and the fact that I would have to render a verdict in this case and somewhere there's a potential that her prior decision might affect me gives the defense an advantage over the State, and I don't think that's right. It should be a clean slate.
Under New Jersey Court Rule 1:8-1(a), criminal actions are required to be tried to a jury "unless a defendant, in writing and with the approval of the court, after notice to the prosecuting attorney and an opportunity to be heard, waives a jury trial." While there is a constitutional right to a jury trial, there is no correlative right to a trial without a jury. In ruling on a defendant's application for a bench trial, the judge is to exercise discretion under the totality of circumstances presented. State v. Dunne, 124 N.J. 303, 316 (1991); State v. Davidson, 225 N.J. Super. 1 (App. Div.), certif. denied, 111 N.J. 594 (1988). See also Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed. 2d 630 (1965). Our Supreme Court in Dunne outlined the ground rules for review of a request to waive a jury trial, stating that a court should (1) determine whether a defendant has voluntarily, knowingly, and competently waived the constitutional right to jury trial with advice of counsel; (2) determine whether the waiver is tendered in good faith or as a stratagem to procure an otherwise impermissible advantage; and (3) determine, with an accompanying statement of reasons, whether, considering all relevant factors . . . it should grant or deny the defendant's request in the circumstances of the case. [Dunne, supra, 124 N.J. at 317.]
The "relevant factors" include the following:
At one end of the scale, tilting in favor of jury trial, will be the gravity of the crime. The higher the degree of the crime, the greater the weight given to that factor. Other factors that will tip the scale will be the position of the State, the anticipated duration and complexity of the State's presentation of the evidence, the amenability of the issues to jury resolution, the existence of a highly-charged emotional atmosphere . . . , the presence of particularly-technical matters that are ...