On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-0421.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2011 -
Before Judges Cuff, Lihotz, and Waugh.
A jury found defendant Max Yves Merlain, a/k/a Max Merlain, guilty of
serious bodily injury murder, N.J.S.A. 2C:11-3a(1), and endangering
the welfare of the two-year-old son of his
girlfriend. Judge Heimlich imposed a forty-five year term of
imprisonment subject to a No Early Release Act (NERA)*fn1
parole ineligibility term on the murder charge and a
concurrent term of eight years subject to a four-year parole
ineligibility term on the endangering charge.
On August 8, 2004, at 7:41 p.m., Dominique, defendant's girlfriend, called 9-1-1 to report that her two-year-old son Julio had vomited, stopped breathing, and had no pulse. When the first ambulance arrived, defendant was outside and flagged down the emergency response team. The crew found the child limp and unresponsive to all stimuli. He had no pulse, no respiration, and no blood pressure. He was cyanotic, pale and dry, and his extremities were cool to the touch.
Julio had bruising on the left side of his face, bilaterally on his upper front abdomen, on his lower right abdomen, and on the upper left side of his back. He appeared to have suffered a traumatic injury. His mother told the emergency responder that her son had fallen in the bathtub the day before, and had not exhibited any mental changes after the fall.
Emergency personnel placed the child in the ambulance and began cardiopulmonary resuscitation (CPR). Paramedics intubated him and provided medications. However, his heart showed no electrical activity, and his condition did not improve. The ambulance departed for Trinitas Hospital at 8:13 p.m., and it arrived at 8:23 p.m. CPR was performed and medications administered, to no avail. At 8:36 p.m., Julio was pronounced dead. He was 351/2 inches tall and weighed between 25 and 35 pounds.
When medical personnel declared the child dead, his temperature was 97.3. The child was in rigor mortis in the extremities, and medical personnel noted lividity in his lower extremities, suggesting he had been dead for some time.
Medical personnel at the hospital noted an abrasion on Julio's face and bruising on the left side of his face, abdomen, and back. His belly was distended, indicating possible trauma. They recorded the mother's explanation for the bruising--the previous day's fall in the bathtub--but noted that the bruising was extensive and appeared to be less than twenty-four hours old.
Defendant traveled to the hospital in the paramedic vehicle. He was crying. Defendant stated that Julio had been sick for a couple of days, was vomiting, and he remarked he may not have administered CPR correctly.
The emergency room nurse also noted defendant's statements that he had cared for the child all day while the child's mother worked, that the child had slept all day, vomited, and defendant attempted to give the child juice because he kept wanting something to drink. The nurse, as well as the emergency room doctor, acknowledged that the facial bruising combined with vomiting and sleepiness the following day could be a sign of a brain injury. However, the emergency room doctor found it significant that treatment was not sought sooner and considered the delay suggestive of non-accidental trauma.
When informed of Julio's death, his mother screamed and began to weep. Defendant also was upset. Doctor Keyon Hood questioned the two about Julio's history, and his mother related that he had fallen in the tub the night before, hitting the left side of his face. She reported that he suffered no loss of consciousness or vomiting that night, and he went to bed without further symptoms other than bruising or swelling on the left side of his face. On the day of his death, she left her son in defendant's care from 5:45 a.m. until sometime after 3 p.m., while she went to work.
Defendant said he awoke in the morning to find the child covered in vomit. Defendant changed him and the two went back to sleep. When Julio awoke again, he vomited and continually asked for juice. He vomited again around 7:30 p.m. and fell to the floor, at which time EMS was called.
Defendant and the child's mother related essentially the same version of events to Elizabeth police detectives Robert Hilongos and Steven Owsiany, who had responded to the hospital upon the report of Julio's death. After speaking with the child's mother and defendant, the officers observed the child's body, noting the bruises.
The following day, August 9, 2004, an autopsy was performed. The medical examiner, Dr. Leonard Zaretski, found that the manner of death was homicide by blunt force trauma to the head and abdomen. He found extensive injury to the left side of the child's face, including multiple overlapping irregularly-shaped lesions or spots of various sizes which indicated previous traumas and could not have occurred from the history provided by the child's mother and defendant. The child had contusions of fairly recent origin in the front of his right ear and on the right side of the back of his neck. The child also had a contusion under his left eyelid and another on his upper lip.
The medical examiner also found bruising on the left side of the belly and the forearm. The child had extensive blood accumulation inside his head, causing significant swelling of the brain and a subdural hematoma. The medical examiner also reported deep lacerations in two areas of the spleen and lacerations to the left kidney. The subdural hematoma, the lacerated spleen, or the lacerated kidney could have caused Julio's death.
Later in the day on August 9, 2004, the child's mother and defendant gave statements to the police at police headquarters. Her statement included essentially the same information as relayed at the hospital, except she estimated that Julio had fallen in the bathtub at 6:00 p.m. on August 7, the day before his death.
In his statement, defendant denied causing any harm to the child. He told the police that he had picked up Julio and his mother in Irvington at approximately 8:00 p.m. on Saturday August 7. He observed a bruise on Julio's face, which his mother explained by stating that Julio had fallen out of the bathtub. They arrived at defendant's apartment at approximately 9:00 p.m. That night, Julio's mother and defendant slept in defendant's bed; Julio slept on a sponge mattress on the living room floor. According to defendant, Julio fell asleep soon after they arrived at his apartment.
Between 11:00 and 11:35 p.m., defendant was out of the apartment, picking up his sister from work and driving her home. When he returned home, the child's mother was asleep, and defendant went to sleep too.
Defendant also reported that the child's mother awoke at about 5:00 a.m., and defendant walked her to the bus stop. Julio was asleep when they left the apartment, and he was still asleep when defendant returned a few minutes later.
In his statement, defendant stated he returned to bed and awoke up at 8:00 a.m. He checked on Julio, who was awake on the mattress, covered in vomit. Defendant picked up the child, changed his diaper and clothing, cleaned him up, changed the sheet on the mattress, laid down with him, gave him a bottle, turned on the television, and went back to his bed to sleep. When defendant awoke between 11:45 a.m. and noon, Julio was awake. Defendant attempted to feed him, but the child rejected the food. The two then fell asleep on defendant's bed, with Julio drinking chocolate milk from a bottle.
When Julio's mother arrived home after work, Julio called for her, and defendant gave him another bottle of chocolate milk. According to defendant, while Julio played with his mother, the child drank about three bottles of milk and half a bottle of fruit punch. He then made a noise like he was choking and vomited on the bed. Defendant rushed him to the bathroom and held him over the sink. When defendant turned him over, he observed Julio's "eyes roll to the back of his head." The child was not breathing, so defendant started CPR and told Julio's mother to call 9-1-1. When EMS arrived, they continued to perform CPR and rushed Julio to the hospital, where he was pronounced dead.
On August 11, 2004, the detectives visited defendant's apartment and defendant reenacted the CPR he performed on the child. Subsequently, detectives also visited the mother's apartment in Irvington. Criminal charges were not filed against defendant until May 2006.
Julio's mother testified at trial pursuant to a grant of use immunity. The charges against her were still pending, and she received no promises in exchange for her testimony. She explained that after speaking with her lawyer and seeing the medical evidence, she understood that her son had been murdered, and she wanted justice for him. She did not care what happened to her.
The mother's trial testimony changed from prior accounts, except she stated that the child never took a bath the day before his death and never fell in or out of the tub. When she checked on her son when she awoke the next morning, he had no bruises on his face or side. Julio's mother left for work at about 5:30. Defendant walked her to the bus station. She did not return to defendant's apartment until approximately 5:00 p.m.
When Julio's mother arrived at defendant's apartment, she did not see Julio, and asked defendant for him. Defendant told her to sit down because there was something he had to tell her. He told her that Julio had been throwing up all day, so defendant gave him a bath and the child fell in the tub and had a bruise on his face.
Julio's mother entered the bedroom where she saw Julio laying on the bed, head facing the foot of the bed, with a big bruise on his face and a cut on his lips. He "looked different," tired, and his hands and feet were cold. "He said, 'Mommy,' softly," and he asked for something to drink.
She began asking defendant questions about what happened. Defendant said he did not see the boy fall; he had left the bathroom to get a towel. She asked defendant for some food, and he brought some from the kitchen. However, Julio did not eat even two spoonfuls of food, and when she attempted to put him on the floor, he could not stand. She asked defendant if anything else had happened that day and defendant said "no." He said Julio awoke with vomit all over him, had not wanted to eat, and had watched a little television.
The child's mother wanted to bring Julio to the hospital, but defendant refused because "they might think I did something to him." She thought Julio might be tired--she knew he had a cold--so she picked him up and tried to lay him on his stomach so he could sleep. As she did so, he was breathing very heavily, and he made a big noise. He had vomit all over his nose and mouth, so she and defendant rushed him to the bathroom and put his head under the faucet. She saw his eyes roll back in his head, he went limp and stopped breathing. She called 9-1-1 while defendant attempted CPR pursuant to instructions relayed from the 9-1-1 operator through her. At that point in time, she had been home for about two hours.
Julio's mother admitted she fabricated the story about Julio falling in the bathtub at her home and repeated it to everyone who asked her what had happened to her son. She did so because she was married to Julio's father, who lived in Haiti. She was having an affair with defendant, and she did not know how she was going to explain what happened to her husband. She testified that defendant did not force her to lie, and she made up the story to protect herself. She had only known defendant a short time; their affair ended the day Julio died.
The investigation concerning the child's death was hampered by the mother's fabricated story and a dispute among some experts whether the child's death was accidental or a homicide. Although the medical examiner opined that the manner of death was homicide by blunt force trauma, he commented that some internal injuries could have occurred from improperly administered CPR. In addition, another professional, who did not testify at trial, opined that the death was accidental.
The State presented three expert witnesses who testified that Julio's wounds were incurred four to ten hours before his death, during the period of time he was in defendant's exclusive care. Moreover, the wounds were inflicted, not accidental, and they could not have occurred as the result of a fall in or out of a bathtub.
The State's first expert was Dr. Zhongxue Hua,*fn2 one of the medical examiners. He testified that the manner of death was homicide, with the injuries inflicted rather than accidental. He recounted the injuries found by the medical examiner who conducted the autopsy. He, too, opined that the injuries to the abdomen or the injuries to the brain were lethal in and of themselves.
In terms of timing, Hua opined that all of the contusions were fairly recent, because there were no signs of healing and signs of healing generally would be visible within four hours of an injury. Moreover, at the time of death, the child had bled out into his abdomen nearly eighty percent of his total blood volume. He stated that the child could not have survived very long with that volume of blood loss. Hua believed death occurred within several hours of the injuries.
Hua opined it was highly unlikely that the injuries had been caused by a short fall to a flat surface approximately twenty-four hours before death. The injury to the left eye was significant in that it was located underneath the eye, a non-protruding portion of the face; such an injury could not have occurred through a fall to a flat surface. Multiple lesions on the left side of the face overlaying each other and injuries to both the left and right side of the face were inconsistent with a fall. The injuries to Julio's spleen and kidney also were inconsistent with a short fall of three to four feet; the kidney in particular is a well-protected organ that is difficult to injure. Hua opined the injuries were more consistent with inflicted wounds--for example, being punched, kicked, or having one's head slammed against a surface by an individual of greater body size and muscle strength.
The State also presented Dr. Douglas Miller, an expert in neuropathology. Miller examined the child's brain at the request of the medical examiner's office. He found that the child had suffered a subdural hematoma on the right side, moderate brain swelling, and herniations/shifting of the brain tissue. The hematoma was acute, meaning that it was no older than twenty-four hours, and it would have been fatal, although the child's other injuries accelerated his death.
Julio's brain tissue also evidenced damage from oxygen loss and loss of blood supply. This damage was caused by a combination of both the cranial and abdominal bleeding, which had begun some four to ten hours before Julio died. As a result of his brain injuries, Julio could not have appeared normal prior to his collapse and death.
Miller concluded that the child suffered acute blunt head trauma, which caused the subdural hematoma, brain swelling, and herniations. The trauma occurred with significant force. It could not have occurred as a result of a short fall to the ground.
Miller further concluded that Julio's injuries had been caused by multiple inflicted blows. "There is no way that a single blow could have caused the injury to the spleen, and the kidney, and the abdomen, and to the head simultaneously. They are separate anatomic areas, even in a small child . . . ." Moreover, the injuries to his face were "inconsistent with a single blow to the face, but [were] more consistent with, at least, two or three blows to the face." His injuries were inconsistent with the claim that he had fallen in the bathroom. It was "impossible" that they occurred in that manner.
Finally, the State presented Dr. Ernest G. Leva, an expert in pediatric medicine and child abuse. Leva reviewed Julio's case individually and as a member of the State's Child Fatality and Near Fatality Review Board (the Board). He was "absolutely convinced" that the child's injuries had "nothing to do with a minor fall in the bathtub," and the abdominal injuries were not consistent with CPR. Leva had never seen a child suffer such injuries from a fall from three to four feet in height as initially described by the child's mother. Further, he noted that the literature was consistent that minor falls did not result in serious injuries in children. Thus, Leva opined that Julio's injuries were inflicted.
In response, defendant presented the testimony of Dr. David Emery Wolfe, an expert in neuropathology. He agreed with Miller that Julio's subdural hematoma was acute, meaning that there were no signs of healing. However, he estimated that the hematoma occurred twenty-four to forty-eight hours before Julio's death, because one expects to see signs of healing within that time frame.
Wolfe also observed, as had Miller, that some brain cells had died due to loss of oxygen. He opined that this could have occurred anywhere between six and twelve hours after Julio suffered his injuries. However, he also concluded that the red neurons indicative of the dead brain cells occur in both fatal and non-fatal injuries, and could exist in the brain for a long period of time.
In terms of bruising, Wolfe opined that the bruise on the boy's face was related to the subdural hematoma, and was consistent with having occurred twenty-four hours before Julio's death. The bruise to Julio's abdomen had "ripened" in color and therefore had been there for at least twenty-four hours. While he acknowledged that, microscopically, there had been no evidence of healing, he claimed that fresh, acute bruises could not be dated histologically.
Wolfe concluded that the abdominal bleeding was "consistent with a start of bleeding on the time of the injury to the head." He claimed the spleen had suffered only a small laceration and would have bled slowly. Moreover, Wolfe believed the abdominal and head injuries occurred at the same time because the bruises in both areas could be dated to around the same time. Wolfe appeared to concede on cross-examination, however, that there was no reliable way to date acute bruises.
Finally, Wolfe opined that Julio's injuries were consistent with a fall out of a tub to a bathroom floor the day before his death. The child's height, plus the height of the tub, created sufficient height to suffer a fatal head injury, especially since the surfaces in the bathroom were extremely hard and unyielding. Wolfe acknowledged that the study upon which he relied in reaching this opinion had been highly criticized, and addressed only head injuries, and not abdominal injuries such as those suffered by Julio. He claimed that critics of the study were biased.
Wolfe explained that typically a person who experiences a subdural hematoma has a lucid period immediately following the injury, which could last anywhere from minutes to weeks. However, as a result of the bleeding, they eventually suffer increased intracranial pressure, the symptoms of which can include nausea and explosive vomiting, lethargy, changes in body temperature, and ultimately dilation of the pupils, stupor, and loss of consciousness. He stated that Julio's behavior on the day of his death, as described by defendant, was indicative of such intracranial pressure.
On appeal, defendant raises the following arguments:
THE COURT ERRED IN ADMITTING THE DEFENDANT'S WRITTEN STATEMENT WHICH WAS THE PRODUCT OF CUSTODIAL INTERROGATION AND AN INVALID MIRANDA WAIVER.
THE COURT SHOULD HAVE GRANTED THE JUDGMENT OF ACQUITTAL AS TO THE CHARGE OF SBI MURDER BECAUSE THE STATE FAILED TO PRODUCE ANY PROOF THE DEFENDANT HAD THE REQUISITE MENS REA.
THE COURT FAILED TO ADEQUATELY DISTINGUISH SBI MURDER FROM AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER WHEN THE JURY REQUESTED CLARIFICATION. (Partially Raised Below).
AN EXPERT SHOULD NOT HAVE BEEN PERMITTED TO RELATE THE OPINION OF A NON-TESTIFYING EXPERT IN VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION.
THE PROSECUTOR EXCEEDED THE BOUNDARY OF FAIR COMMENT WHEN SHE DENIGRATED DEFENSE COUNSEL AND APPEALED TO THE PASSIONS AND SYMPATHIES OF THE JURY.
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