On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-02-0332.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Espinosa and Kennedy.
Defendant was indicted on two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and one count of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4.
The charges arose from the death of his live-in girlfriend's five-year-old child. Defendant was convicted of the two endangering the welfare charges and the lesser-included offense of reckless manslaughter, N.J.S.A. 2C:24-4b(1), and sentenced to an aggregate term of eighteen years with nine of those years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He appeals from his convictions and sentence. We affirm.
Defendant lived with Natasha Smith, her two sons, Kedar and "Kenny N.,"*fn1 and defendant's eighteen-month-old son. Kedar died on March 29, 2004, the result of an injury sustained on the prior day. The State and defendant presented conflicting testimony as to how Kedar was injured. The State relied upon the account provided by Kenny, then three years old, that Kedar was injured and fell ill after defendant punched him in the upper abdomen. Defendant maintained that Kedar was injured when Kenny jumped on him.
On March 28, 2004, defendant stayed at home to watch the children while Natasha went to work. According to defendant's testimony at trial, Kedar told him shortly after he awakened that he had a stomachache. Defendant prepared pierogies and, after they finished eating, went to his bedroom. He heard Kedar yell out from the bedroom across the hall, "Get off me, [Kenny.]" Defendant went to the boys' bedroom to investigate, and "saw [Kenny] on top of Kedar. And . . . it looked like he had jumped a couple of times." Defendant reprimanded Kenny and asked Kedar if he was okay, to which Kedar replied he was "fine." Later that day, Kedar vomited and, according to defendant, only vomited the pierogies. Kedar told defendant he was fine and that his stomach hurt "[j]ust a little bit." Defendant gave Kedar flat soda, Saltine crackers and over-the-counter anti-nausea medication pursuant to the directions.
On Monday, March 29, 2004, Kedar woke up too tired to go to school and complained that his stomach hurt. Defendant stayed home with him while Natasha went to work. Kedar vomited at least one time before defendant called the office of Dr. Bernard Adler, Kedar's pediatrician, and spoke with Kathy Willever, a medical assistant, who advised defendant to give Kedar flat Coke or Coke syrup and to call back if the problem persisted. At approximately 11:00 a.m., Kedar collapsed onto the bathroom floor and defendant had to help him back to his bed. At about 2:00 p.m., Natasha arrived home to take Kedar to a 2:15 p.m. appointment at Dr. Adler's office.
When Willever saw Kedar on the examination table, she realized the child was not breathing. Willever summoned Dr. Adler, who testified that Kedar was "unresponsive and appeared comatose[,]" his "pupils were dilated and fixed[,]" his skin was blue and "things were terrible." Dr. Adler ordered Willever to call 911 and to get an IV as he began to pump Kedar's chest to provide cardiac massage. After a few minutes, Emergency Medical Services arrived and took over treatment. Kedar was taken to the emergency room of Jersey Shore University Medical Center and pronounced dead at 3:00 p.m. that afternoon.
Detective Ellen Cannon, of the Monmouth County Prosecutor's Sex Crimes/Child Abuse Unit; Sergeant Keith Coleman, of the Monmouth County Prosecutor's Homicide Unit; Detective Sergeant Michael Emmons of the Neptune Township Police Department; and an Asbury Park Detective all responded to the hospital. Detective Cannon spoke with Kedar's family in a private waiting room in the hospital's emergency area. She asked defendant "if Kedar had fallen or complained of being injured." He replied "that if any of the children had hurt themselves, they would have complained to him." Defendant also denied Kedar was wrestling with anyone. He told the detectives that Kedar was fine on Saturday, March 27, 2004, and on Sunday until about 2:00 p.m. on Sunday. After Kedar ate lunch, he complained of a stomachache and began to vomit. Defendant stated that Kedar vomited approximately five times that day and "it sounded like he was throwing up everything." He also told the detectives that on the following morning, he had to carry a "clingy" Kedar to his bed after he collapsed on the bathroom floor because Kedar was too weak to walk.
At the conclusion of the interview, Detective Coleman told defendant that an autopsy would be done on Kedar and they would find out exactly how he died. Detective Coleman testified that a few seconds later, defendant said,
Oh, yeah. I forgot to tell you. [Kenny] was standing on [Kedar's] stomach. And I heard this when I was in my bedroom and I heard him telling [Kenny] to get off his stomach.
Defendant then told Detective Coleman that when he walked into the room, Kenny was standing on this stomach, and that might have been the cause of Kedar's injury.
On Tuesday, March 30, 2004, at approximately 10:15 a.m., Dr. Jay Peacock, Chief Medical Examiner for Monmouth County, conducted Kedar's autopsy.
Dr. Peacock testified as to the circumstances of Kedar's death provided to him prior to the autopsy. Those circumstances included information that Kedar had been sick for approximately two days prior to his death, suffering from abdominal pain and vomiting. He got progressively weaker, causing his mother to make an appointment with his pediatrician. The doctor was given no history of trauma associated with the final incident at the time of death.
Dr. Peacock's external examination revealed "a reddish-purple contusion or bruise, at the upper right cheek region[,]" a small abrasion on the upper left neck, an abrasion just below the navel, and "reddish-brown discoloration" on "the skin of the right-lower side of the abdomen[.]" During the internal examination, Dr. Peacock found no evidence of internal head injuries, internal neck injuries or internal chest injuries. However, he found an excessive amount of dark-brown liquid within the abdominal cavity as well as "peritonitis," an inflammation of the abdominal cavity, or the peritoneal cavity, and a hole and tears in the wall of the small intestine. Dr. Peacock determined that Kedar's death resulted from injury, not disease, and formed the preliminary conclusion that the cause of death was "[b]lunt force abdominal trauma with diffuse severe peritonitis."
After Dr. Peacock rendered his preliminary conclusion, Kedar's family was asked to come to the Prosecutor's Office, where defendant and Kenny were interviewed separately. During the course of his videotaped interview, Kenny demonstrated how defendant had punched Kedar in the abdomen on the day before he died. The videotaped interview was not admitted into evidence at trial but was reviewed by Dr. Peacock.
Meanwhile, Detective Coleman interviewed defendant. At first defendant stated that Kedar complained of a stomachache after he ate the pierogies. When Detective Coleman reminded defendant of his prior statement that Kedar complained of a stomachache before he ate the pierogies, defendant said, "I know what this looks like." Upon inquiry, defendant explained, "You are blaming me for Kedar's death."
After learning of Kenny's statement that defendant punched Kedar, Detective Coleman repeated the information to him. Defendant responded, "You're gonna believe a 3 year old?" Detective Coleman then asked defendant why Kenny would lie or "make up a story like that[.]" Defendant began to cry. Detective Coleman further testified that when the two began discussing defendant's earlier statement that he witnessed Kenny jumping or standing on Kedar's stomach, defendant demonstrated what he had observed by jumping up and down three times.
At the time of the trial, Kenny was eight years old and in the third grade. He had not lived with defendant for approximately four years but remembered living with him, his mother, brother and defendant's son. He remembered when his brother died. Kenny testified that he saw defendant punch Kedar in the stomach while his brother was lying flat on the ground. After defendant punched him, Kedar began to cry and later vomited. Kenny remembered a big bucket in the middle of the bedroom and that Kedar threw up into the bucket every five minutes. Kenny testified that Kedar died soon after that. Kenny said he did not recall wrestling with Kedar or jumping on him.
The trial judge conducted a hearing pursuant to N.J.R.E. 104 to determine whether the doctor would be permitted to include a summary of the statement made by Kenny in describing the basis for his conclusions. During the course of that hearing, Dr. Peacock testified that, as part of the information gathering conducted by a medical examiner, witness statements are typically reviewed. In this case, he reviewed Kenny's videotaped statement for that purpose and relied upon it in arriving at his conclusion as to the manner of death. He noted that there was a portion of the video statement that [Kenny] indicated that the decedent was punched in the abdomen by Mr. Berry. He not only stated that, but he gestured the very appropriate location on the body where that blow would have to be delivered.
Dr. Peacock described this statement and the demonstration of where the punch landed as "the key component [to his conclusion] because it provided an explanation of the findings that medically fit." Dr. Peacock testified that he also relied upon Kenny's statement that Kedar was lying down in forming his conclusion.
At the conclusion of the Rule 104 hearing, the court ruled that Dr. Peacock would be permitted to testify as to the basis of his opinion, including a summary of Kenny's statement, which the doctor stated he had relied on as a necessary element of his conclusions. The court noted that the jury was aware from other evidence that Kenny had made such a statement and, in fact, Kenny had already testified and been cross-examined regarding the statement.
When testimony resumed in the jury's presence, Dr. Peacock testified as to his initial conclusion that the cause of death was blunt force trauma with diffuse severe peritonitis. He reviewed the evidence of abdominal trauma and stated that the conditions, the tearing of the tissues, were caused by injuries, not natural diseases. He explained his consideration of the information available to him at the time of the autopsy:
Well, on the day of the autopsy, I was provided with some information concerning what were possibilities of the mode of production of the injury. One of those was that the . . . younger brother, [Kenny], was witnessed to be standing on or possibly jumping on the abdomen of the decedent. And that was one scenario that I was going to evaluate, as well as on the day of the autopsy, I was provided information that the decedent's brother, [Kenny], the younger brother, the 3-year-old brother, had indicated in an interview that the decedent had been punched in the abdomen by Mr. Berry.
So there were those two scenarios that I had to evaluate, and also, you know, consider what were the mechanisms of production of these types of injuries known to the medical community, as far as what would lead to these type[s] of injuries.
There are only certain types of scenarios where these types of injuries are produced, so I needed to gather more information and try to evaluate what had been told to me.
Dr. Peacock gathered more information, conducted more tests and research, evaluated the information and considered what would be the possibilities of this type of death and what were the common mechanisms of production of this type of injury. His conclusion as to the cause of death remained the same. He explained how the blunt force abdominal trauma with diffuse severe peritonitis is mechanically produced:
This type of injury is produced when a forceful blow is delivered to the abdominal cavity or the abdominal wall, the front of the abdomen. A localized severe force is --strikes the abdominal wall[,] compressing the abdominal wall inwardly, and the jejunum, or the area of the small intestine, as well as the mesentery, are crushed between the spine and the abdominal wall.
Dr. Peacock testified further regarding his analysis of the mechanism that caused the injury. He reviewed police reports, medical records, medical literature in the area, the autopsy findings, statements made by defendant and the videotaped interview of Kenny. He described common settings for such an injury, including a motor vehicle accident, child abuse, a substantial fall onto a protruding object and a bicycle accident. Because there was no history of a motor vehicle or bicycle accident, a substantial fall or other less common incidents that could produce the injury, he was left with two possible mechanisms for the injury.
One of those possibilities was that three-year-old Kenny had stood or jumped on Kedar's abdomen. Kenny was two years younger, approximately twelve pounds lighter and seven to eight inches shorter than Kedar. Dr. Peacock testified that if Kenny jumped from the floor onto Kedar's abdomen, "it would not create enough force to cause this type of injury." To create such force, Kenny would have to jump from a spot five to ten feet higher onto the abdomen, and the information available to Dr. Peacock indicated there was no place in the room that would permit Kenny to do so. Dr. Peacock concluded that the internal injury he observed in Kedar could not have been produced by Kenny jumping on him.
Dr. Peacock then discussed his consideration of a blow to Kedar's stomach by an adult. In doing so, he considered Kenny's videotaped statement, which he described as follows:
A. On the videotape, [Kenny] states and gestures a punch to his -- to the decedent's, Kedar's, upper abdomen in the exact location that medically fit the location that would be necessary to produce these injuries.
Q. Okay. A punch by whom?
Defense counsel objected, but was overruled by the court. When asked why he concluded that this was the mechanism of death in this case, Dr. Peacock stated,
Well, as I stated, these types of injuries occur in certain scenarios. And, you know, the major source of these injuries was a motor vehicle crash which was not present. The second most common is the punch or blow by an adult to the abdomen. Child abuse is the second most common cause of this type of injury.
Defense counsel objected again, and the court overruled the objection, noting that the witness was restating ...