On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 99-02-0113.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2010 - Decided
Before Judges Sapp-Peterson and Fasciale.
Defendant appeals the denial of his motion for post conviction relief (PCR). A jury convicted defendant of aggravated manslaughter, N.J.S.A. 2C:11-4, and endangering the welfare of a minor, N.J.S.A. 2C:24-4(a). The court imposed an aggregate twenty-nine-year custodial sentence subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. In a published opinion, State v. Messino, 378 N.J. Super. 559 (App. Div. 2005), we affirmed the conviction and sentence imposed. The Supreme Court denied certification. State v. Messino, 185 N.J. 297 (2005). Defendant filed a pro se PCR petition in 2005. The trial court conducted oral argument on April 8, 2008, and subsequently issued a written opinion denying the petition. We reverse and remand for an evidentiary hearing.
Defendant's conviction arose out of the death of Dakota Roberts, the twenty-three-month-old son of defendant's paramour, Laurie Roberts, with whom defendant resided at the time of Dakota's death. The pertinent facts set forth in our earlier opinion are recounted here:
From the time of his birth, [Dakota] suffered from an enlarged scrotum resulting from "hydrocele" or fluid around the testicles. [Dakota] 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, [Dakota] 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, [Dakota]'s scrotum was slightly enlarged and bruised and the bruising extended to [Dakota]'s lower abdomen. Nance stated that he observed blood in the tissues surrounding [Dakota]'s scrotum, which he had never seen when performing a hydrocele reduction procedure. Nance said that [Dakota]'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 [Dakota]'s mesentery, the fibrous tissue that holds the small bowel in place and supplies blood to the bowel. [Dakota] was discharged from the hospital on May 30, 1998.
After [Dakota]'s release from the hospital, Roberts and defendant left [Dakota] at the home of Jean Mangini, Roberts' aunt. Roberts and defendant went home and went to sleep. [Dakota] was brought home around 9:30 in the evening. Roberts testified that defendant put [Dakota] to bed around 10:30 p.m. While [Dakota] slept, Roberts and defendant watched rented movies.
Around 5:30 a.m., the phone rang and [Dakota] was awakened. Roberts picked up [Dakota] to calm him and then she handed the child to defendant, who said he would put [Dakota] back to bed. Roberts went upstairs to the bathroom and, while she was in the bathroom, Roberts heard [Dakota] cry out. Roberts testified that she went back downstairs and asked defendant why [Dakota] had cried out. Defendant said that [Dakota] did not want to go to sleep. Roberts and defendant went to bed, but shortly thereafter Roberts heard [Dakota] making a gagging sound. She went to the child and saw that his body was "clenching and unclenching." Roberts thought that [Dakota] was having a seizure. Roberts and defendant called 911.
Anita Brown, a registered nurse who attended to [Dakota] in the emergency room, testified that [Dakota] was "still and unresponsive" when he was first brought to the hospital. She noticed that [Dakota] had a huge bruise on the lower right abdomen that was larger than a grapefruit and round in shape. Brown also noticed that [Dakota]'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 [Dakota]. Their efforts failed and [Dakota] 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 [Dakota]'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 [Dakota]'s abdomen and concluded that the child's death might be the result of child abuse and homicide. He asserted that [Dakota]'s death was not a "metabolic death." The cause of death was "hypovolemic shock." [Messino, 378 N.J. Super. at 569-71.]
In addition to Dr. Hoyer, the jury also heard testimony from doctors who treated Dakota three months prior to his death for multiple fractures, which they did not attribute to Dakota's MPS condition. Defendant called two witnesses, both of whom provided expert testimony. Dr. Roger A. Berg, a radiologist, testified that the tibia fractures that Dakota sustained prior to his death were the type of fractures common in children learning to walk. Dr. John E. Adams, a forensic pathologist, testified that the "patterns in the bruise" on Dakota's body were not consistent with a blow and that Dakota suffered from a blood clotting problem, the origins of which he could not determine. Messino, supra, 378 N.J. Super. at 574. He expressed the opinion that Dakota's mesentery contained HurleySchleie cell deposits that caused the mesentery tissue to thicken and become shorter, making Dakota more susceptible to injuries caused with considerably less force. He concluded that Dakota had not sustained a mesentery tear but rather suffered from a rare bowel injury, where the bowel had been torn from the mesentery.
In his PCR petition, and reiterated here in this appeal, defendant's chief complaint was that his trial counsel provided ineffective assistance of counsel by (1) failing to interview and retain an expert in the field of MPS, as well as other experts, despite being provided with the necessary funds to do so; (2) failing to properly investigate the results of the investigation into allegations of abuse undertaken by the Division of Youth and Family Services (DYFS) wherein no abuse was substantiated; and (3) failing to present character witnesses. To support these claims, defendant presented affidavits from his mother and Alexander Esposito (Esposito), the private investigator retained by trial counsel's firm. Defendant also presented reports from experts in the fields of urology and pathology, as well as letters from character witnesses.
The affidavit of defendant's mother indicated she (1) paid trial counsel's firm $100,000 to defend her son but encountered numerous problems in getting feedback from the firm; (2) was told that the firm was going to retain Dr. Michael Baden as an expert; and (3) provided funds to retain him, but Dr. Baden was not retained. In his affidavit, Esposito stated that he believed he was the primary investigator retained in connection with the matter, but "was repeatedly told to wait to interview witnesses and consequently, witnesses named by the State were never interviewed by the defense that [he] was aware of." He also indicated that trial counsel "repeatedly ...