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State of New Jersey v. Royce Berry

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 20, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ROYCE BERRY, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 06-02-0332.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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?

A. Mr. Berry.

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 what he had already indicated.

The defense presented the testimony of John E. Adams, M.D., a forensic pathologist. Dr. Adams testified that it is the duty of a medical examiner to classify the manner of death in one of five different categories: homicide, suicide, natural, accidental and undetermined. Dr. Adams did not disagree with Dr. Peacock's conclusion that the cause of death was "[b]lunt force abdominal trauma with diffuse severe peritonitis."

Dr. Adams testified that he could not rule out Dr. Peacock's opinion that the injury here was the result of an adult punching a five year old. In fact, he agreed that a blow inflicted by an adult is the second most reported cause for blunt force injury in children. Dr. Adams also testified that, under "the right circumstances," the fatal injury "could" have been caused by a younger brother weighing thirty-five pounds jumping on Kedar. He explained that the right circumstances would exist to produce the amount of force necessary to cause the injury, such as if the injured child is lying on a floor, rather than on a soft surface, or if one child jumped from a substantial height onto the injured child. Dr. Adams also testified he found evidence of a prior, similar injury that had occurred approximately two weeks earlier which was not reflected in any of Dr. Peacock's reports. Dr. Adams testified that the earlier injury "may have" contributed to the acute injury that was approximately two to three days old at the time of Kedar's death. Dr. Adams concluded,

In summary, there are multiple potential causes of injury which were responsible for the child's death, from repeated blows by an adult fist over time, to accidental injuries caused by a sibling, or by himself, or even a combination of origins.

The jury acquitted defendant on the charge of aggravated manslaughter but convicted him of the lesser-included offense of reckless manslaughter and both counts of endangering the welfare of a child. The court sentenced defendant to nine years subject to NERA and three years parole supervision on the reckless manslaughter charge; a concurrent term of nine years on the endangering count that arose from the infliction of the fatal blow; and a consecutive term of nine years on the second endangering count based upon defendant's failure to seek medical attention after Kedar was injured.

Defendant presents the following issues for our consideration in his appeal:

POINT I

THE TRIAL COURT ERRED BY PERMITTING THE STATE'S EXPERT (MEDICAL EXAMINER) TO GIVE A NET OPINION AND A IMPERMISSIBLE CONCLUSION.

POINT II

MR. BERRY'S CONSTITUTIONAL RIGHT TO CONFRONTATION WAS VIOLATED WHEN CROSS EXAMINATION AS TO A PRIOR FALSE ACCUSATION OF THE STATE'S KEY WITNESS WAS BARRED BY THE TRIAL COURT.

POINT III

THE MISCONDUCT OF THE PROSECUTOR DEPRIVED MR. BERRY OF A FAIR TRIAL.

POINT IV

MR. BERRY DID NOT RECEIVED [SIC] EFFECTIVE ASSISTANCE OF COUNSEL. POINT V

THE SENTENCE IMPOSED BY THE TRIAL COURT WAS IMPROPER.

POINT VI

THE TRIAL COURT ERRED BY DENYING MR. BERRY'S MOTION PURSUANT TO R. 3:20-1 FOR A NEW TRIAL BECAUSE THE VERDICT WAS AGAINST THE WEIGHT [SIC] EVIDENCE.

After reviewing each of these arguments in light of the record and applicable legal principles, we are satisfied that none of them have merit.

I In Point I, defendant argues that the trial court erred in permitting Dr. Peacock to testify as to the ultimate issue of his guilt and that Dr. Peacock's opinion should have been excluded as an inadmissible net opinion. In addition, he contends that the prosecutor improperly referred to hearsay evidence relied upon by Dr. Peacock in his summation, an issue that lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We first address the argument that Dr. Peacock's opinion was a net opinion, which requires no more discusion than the following brief comments. See R. 2:11-3(e)(2). An expert opinion must be supported by facts or data either in the record or of a type usually relied on by experts in the field.

N.J.R.E. 703. Both Dr. Peacock and Dr. Adams discussed their reliance upon facts in the record and described such facts, such as witness statements, as being of a type usually relied upon by experts in their field. As the summary of his testimony demonstrates, Dr. Peacock "provide[d] the whys and wherefores" of why he reached his conclusions based upon the facts in the record. Nextel of New York, Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 43 (App. Div. 2003) (quoting Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002)); see also Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). Therefore, his opinion was properly admissible and not a net opinion.

We next turn to defendant's argument that Dr. Peacock improperly offered an opinion as to the ultimate issue in the case. Dr. Peacock concluded that Kedar had died as the result of a blunt force trauma inflicted by an adult. He testified that this was the second most common cause of this type of injury, "a blow to the abdomen by an adult, a punch or kick[.]"*fn2

In explaining the basis for his opinion, he referred to the demonstration Kenny gave in his videotaped interview of a punch thrown by defendant. He noted that Kenny's gesture mimicked a punch to Kedar's "upper abdomen in the exact location that medically fit the location that would be necessary to produce these injuries."

Defendant argues that because Dr. Peacock repeated Kenny's statement that it was defendant who threw the punch described, he gave an impermissible opinion that defendant was guilty. We disagree.

N.J.R.E. 702 provides that if a duly qualified witness's specialized knowledge "will assist the trier of fact to understand the evidence or to determine a fact in issue," the witness "may testify thereto in the form of an opinion or otherwise." In State v. Kelly, 97 N.J. 178, 208 (1984), the Supreme Court identified three requirements for the admission of expert testimony: "(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony." Defendant does not argue that any of these prerequisites were not met here.

Pursuant to N.J.R.E. 704, the scope of an expert opinion may "embrace[] an ultimate issue to be decided by the trier of fact." However, the expert may not tread upon the jury's province. It is the exclusive responsibility of the jury to determine whether a defendant is guilty or not and so, "an expert's testimony that expresses a direct opinion that defendant is guilty of the crime charged is wholly improper." State v. Odom, 116 N.J. 65, 77 (1989) (emphasis added); State v. Mervilus, 418 N.J. Super. 138, 146-47 (App. Div. 2011); see, e.g., State v. Landeros, 20 N.J. 69, 74 (1955) (asked if the defendant was guilty, the expert replied, "[h]e is as guilty as Mrs. Murphy's pet pig"). Similarly, the expert may not invade the jury's province by offering an opinion on the credibility of witnesses. State v. Papasavvas, 163 N.J. 565, 613 (2000); Capell v. Capell, 358 N.J. Super. 107, 109 (App. Div.), certif. denied, 177 N.J. 220 (2003).

However, the expert may assist the jury by explaining the import of facts based upon his specialized experience. State v. Summers, 176 N.J. 306, 312 (2003); Odom, supra, 116 N.J. at 71. Such testimony is plainly unnecessary, and therefore not admissible, when the opinion is offered to explain "the meaning of facts that the jury is fully able to sort out without expert assistance[.]" State v. McLean, 205 N.J. 438, 462 (2011); see also Odom, supra, 116 N.J. at 76. Because an expert lacks the requisite specialized knowledge to offer an opinion on matters that lie outside his area of expertise, such an opinion cannot assist the jury and therefore, is also not admissible. See State v. Jamerson, 153 N.J. 318, 340-41 (1998); State v. Locascio, 425 N.J. Super. 474, 489-92 (App. Div. 2012).

Defendant does not challenge Dr. Peacock's qualifications to offer an opinion as a "forensic" pathologist. Dr. Peacock testified that a forensic pathologist is "trained in death investigation, wound interpretation, collection of evidence from bodies and . . . dealing with legal matters as pertaining to death." We have noted the definition of a forensic pathologist as an "'expert in investigating and evaluating cases of sudden, unexpected, suspicious, and violent death, as well as other specific classes of death defined by law.'" Locascio, supra, 425 N.J. Super. at 490 (quoting 1-1 Lawyers' Medical Cyclopedia of Personal Injuries and Allied Specialties, § 1.9 (6th ed. 2011)).

Both Dr. Peacock and Dr. Adams, the defense expert, agreed as to the cause of death, blunt force abdominal trauma with diffuse severe peritonitis.*fn3 The determination as to what mechanism caused the fatal injury was a central issue for the jury. They had before them various facts regarding the nature and placement of the injury and two versions of how Kedar was injured. It was, however, beyond a layman's understanding to be able to evaluate those facts without the assistance of an expert. Absent such testimony, they had no way of knowing whether the conduct attributed to defendant or to Kenny was capable of producing the fatal injury. Therefore, Dr. Peacock's explanation of the import of the facts in evidence provided appropriate guidance to the jury for use in determining the weight to give to the facts and reach its conclusion as to the guilt of the defendant.

In order to assist the jury, it was only necessary to discuss the difference in the potential damage created by a three year old jumping on a prostrate five year old and that created by an adult who punches the same five year old in the location of the fatal injury. It was unnecessary for Dr. Peacock to repeat Kenny's identification of defendant as the adult who threw the punch. That added nothing to the assistance already provided to the jury in distinguishing between the likelihood of either scenario resulting in Kedar's death. But, the reference to Kenny's identification of defendant as the adult who threw the punch was also harmless.

As noted, the expert may not offer an opinion "that defendant is guilty of the crime charged." See Odom, supra, 116 N.J. at 77. Defendant was charged with aggravated manslaughter, which requires proof (1) that the defendant caused Kedar's death; (2) that the defendant did so recklessly, and (3) that the defendant did so under circumstances manifesting extreme indifference to human life. Model Criminal Jury Charges, Murder and Aggravated/Reckless Manslaughter (rev. June 13, 2011). Certainly, the identification of defendant as the actor who caused the death was a matter that the jury had to decide. But the choice here was whether the fatal injury was caused by an adult or by a child. If the jury accepted Dr. Peacock's opinion that the injury was caused by an adult and not a child, the only adult identified in the evidence as striking Kedar was defendant. Therefore, the repetition of who Kenny said struck the blow was of little consequence.

Moreover, the jury was also required to find, beyond a reasonable doubt, that defendant acted recklessly to convict defendant of either aggravated manslaughter or reckless manslaughter. And, to convict defendant of aggravated manslaughter, the crime for which he was charged, the jury had to find that defendant acted under circumstances "manifesting extreme indifference to human life." Neither the mention of defendant's name nor anything else in Dr. Peacock's testimony conveyed an opinion as to whether the blow was administered "recklessly" or "under circumstances manifesting extreme indifference to human life." This case is therefore distinguishable from cases where the expert usurps the jury's responsibility to determine the essential elements of the offense charged. See, e.g., Jamerson, supra, 153 N.J. at 338-39; (forensic pathologist testified beyond the scope of his expertise and tread upon the jury's province by opining that the defendant in a fatal motor vehicle accident had driven "recklessly"); Papasavvas, supra, 163 N.J. at 613 (psychiatrist testified as to the defendant's purpose to evade police officers and described his actions thereafter as a "purposeful" murder).

Further, we note that, after Dr. Peacock was qualified as an expert in forensic pathology, the court instructed the jurors on the proper use of expert testimony, explicitly instructing that they were not bound by the opinion of the expert, that it was their function to determine whether the facts on which the opinion is based existed, and that the probative value of the expert opinion depended on whether they found the facts relied upon by the expert to be true or not. As the trial judge observed, Kenny had already testified to these facts and was subject to cross-examination. The jury had an adequate and independent basis to determine whether the key facts Dr. Peacock relied upon in Kenny's statement - regarding the nature of the punch and that defendant had inflicted the injury - were true or not. Therefore, under the circumstances here, the instruction given to the jury ameliorated any potential for prejudice arising from Dr. Peacock's mention that Kenny identified defendant as the adult who struck Kedar. See id. at 614.

II

Defense counsel sought to cross-examine Kenny regarding a purportedly false allegation attributed to him that was contained in a report written by Susan Brooks, a volunteer at Angel Wings shelter, approximately two months after Kedar died. In Point II, defendant argues he was denied his right to confrontation when the trial court ruled that he could not cross-examine Kenny regarding the statement. We disagree.

We grant substantial deference to the trial judge's discretion on evidentiary rulings, Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000), and discern no abuse of discretion here.

In State v. Guenther, 181 N.J. 129, 150 (2004), the Supreme Court approved "a limited exception to N.J.R.E. 608 to allow a prior false accusation to be used to impeach a victim-witness's credibility[.]" N.J.R.E. 608 was amended thereafter to include subparagraph (b), which states:

The credibility of a witness in a criminal case may be attacked by evidence that the witness made a prior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation.

The Supreme Court noted that "the admission of this type of specific conduct evidence . . . should be limited only to those circumstances in which the prior accusation has been shown to be false." Guenther, supra, 181 N.J. at 157. The Court instructed that a hearing is required pursuant to N.J.R.E. 104 at which "the court must determine by a preponderance of the evidence whether the defendant has proven that a prior accusation charging criminal conduct was made by the victim and whether that accusation was false." Ibid. The Court identified the following factors to be considered in deciding the issue of admissibility:

1. whether the credibility of the victim-witness is the central issue in the case;

2. the similarity of the prior false criminal accusation to the crime charged;

3. the proximity of the prior false accusation to the allegation that is the basis of the crime charged;

4. the number of witnesses, the items of extrinsic evidence, and the amount of time required for presentation of the issue at trial; and

5. whether the probative value of the false accusation evidence will be outweighed by undue prejudice, confusion of the issues, and waste of time. [Ibid.]

Here, the trial judge conducted the requisite Rule 104 hearing. When defense counsel was unable to locate Susan Brooks, the hearing proceeded with Kenny, then eight years old and in the third grade, as the only witness. He was asked about this statement recorded in Brooks's report:

[Kenny] was talking to me at bedtime, and he started telling me about things his daddy does to him and his sisters, that he punched him and his sister in the stomach, that he ties his hands and puts tape on his mouth and a sock in his mouth. He says his dad has a gun, and he pushes the button at him and his brother. He makes him do a full spread or full split and chokes him, hits them all with a belt on his head.

Kenny did not recall Susan Brooks and did not remember making the statement attributed to him. He identified "daddy" as defendant, rather than his biological father, although he could not identify defendant in court. He did remember some of the events described. He remembered getting punched in the stomach, getting his hands tied, having tape put on their mouths and being required to do "full splits" for no reason at all. He did not recall a sock being put in his mouth, being choked, being hit with a belt on the head, saying anything about his sisters or that defendant had a gun.

As noted, the Court in Guenther required proof by a preponderance of the evidence that (1) a prior accusation was made and (2) the prior accusation was false before the alleged false accusation could be admitted into evidence. Ibid. The trial judge ruled that there was insufficient evidence produced at the Rule 104 hearing to show that Kenny had made a prior false accusation. Therefore, the judge would not permit cross-examination regarding the alleged prior false accusation.

After the trial commenced, defense counsel was able to produce Susan Brooks and the court conducted a supplementary Rule 104 hearing. Brooks testified that while Kenny was staying at the Angel Wings shelter, she rubbed his back so he could fall asleep because he could not go to sleep otherwise. She stated that, while she was getting him to sleep, he made the statements she recorded pursuant to her supervisor's instructions. After hearing her testimony, the court found the evidence still insufficient to support a finding that Kenny knowingly made a false accusation, stating, "It's just unclear to this Court who he is referring to, when he was referring to 'father,' whether it was a laundry list of things that occurred to him over his short life and he was going through this laundry list."

The court then reviewed the factors identified in Guenther, noting that the alleged accusation involved a similar incident and was made within two months of Kedar's death. The court concluded, however, that the statement had little probative value and had the capacity to confuse the issues. In addition to the observations of the trial court, we note that, aside from Kenny's own disclaimers, there was no evidence that any of the allegations Kenny made were false. Therefore, we agree with the trial court that there was insufficient evidence to establish by a preponderance of the evidence that Kenny made a prior false accusation which would be properly admissible under N.J.R.E. 608(b).

III

In Point III, defendant argues that prosecutorial misconduct deprived him of a fair trial. He identifies the alleged misconduct as: the introduction of evidence of prior wrongs by defendant, coaching Kenny to make an in-court identification of defendant, improperly impeaching a State witness with a prior inconsistent statement and improper comments during summation.

A.

Defendant argues that the prosecutor improperly elicited evidence of prior wrongs, i.e., a prior accusation of child abuse and the fact that defendant consumed alcoholic beverages.

During the course of describing her interview with defendant, Detective Cannon stated she had asked him if Kedar had any prior medical injuries that they needed to know about. She testified that defendant volunteered that two years earlier, Kedar suffered a concussion after falling on the floor and told his teacher that he was injured when defendant grabbed him. She testified further that the charge was unsubstantiated.

We agree with defendant that this testimony should not have been elicited without alerting the court to the need for an evaluation of its admissibility pursuant to Rule 404(b). However, there was no objection at the time this testimony was given, which suggests that defense counsel did not consider the remark to be objectionable at the time it was made. See State v. Frost, 158 N.J. 76, 83-84 (1999). Moreover, the testimony was subsequently stricken from the record. The court explicitly instructed the jury of that fact and that they were not to consider that evidence in their deliberations. We presume that the jury followed the instructions they were given, State v. Winder, 200 N.J. 231, 256 (2009); State v. Manley, 54 N.J. 259, 270 (1969), and that, therefore, defendant suffered no prejudice.

Defendant also argues that the State improperly introduced evidence that he consumed alcohol during the weekend that Kedar died. This testimony was provided by Sarah Jankowski, an employee or the Division of Youth and Family Services (DYFS), as part of her description of the condition of defendant's home. Defendant argues that the evidence of alcoholic beverages was prejudicial because it permitted the jurors to draw the inference that defendant was intoxicated. However, this claim of potential prejudice is unpersuasive since Jankowski also testified that defendant did not appear to be intoxicated. As there was no objection to this testimony, defendant's argument is reviewed pursuant to the plain error standard, R. 2:10-2. We are satisfied that the introduction of this evidence did not have the capacity to cause an unjust result.

B.

Defendant also argues that the prosecutor improperly coached Kenny to make an in-court identification of him.

Kenny had been unable to identify defendant at the Rule 104 hearing. Prior to Kenny's testimony at trial, the prosecutor advised the court as to his belief that Kenny would be unable to identify defendant in court and that he intended to question him to elicit facts regarding where Kenny had lived since his brother's death that would explain his inability to identify defendant during the Rule 104 hearing. When questioned, however, Kenny identified defendant. Faced with this apparently unanticipated response, the prosecutor questioned Kenny further, eliciting his testimony that he had been unable to identify defendant previously. In response to the prosecutor's questions, Kenny clarified that he identified defendant simply based upon the fact that he was sitting at the defense table and not based upon an independent recollection of him. In effect, the prosecutor neutralized Kenny's "in-court identification," clarifying for the jury that Kenny was unable to identify defendant.

On cross-examination, Kenny stated that it was the prosecutor who told him where the defendant sat in the courtroom.

In noting his impressions from observing Kenny give this testimony, the trial judge stated he had invited the parties to bring Kenny into the courtroom prior to his testimony to familiarize himself with the courtroom and it was "apparent" that Kenny's statement that he was told where the defendant sat related to that rather than to any coaching to secure an in-court identification. The judge observed,

Indeed, I think when he identified Mr. Berry as the person sitting at the defendant's table, I think [the prosecutor] was as surprised as anybody on direct. It appeared that way to the Court.

We are satisfied that this record fails to show any improper coaching of the witness by the prosecutor.

C.

During cross-examination, Sarah Jankowski was asked if she recalled a conversation in which Detective Cannon stated that Dr. Peacock thought Kedar's injuries could have been caused by "wrestling."*fn4 On redirect, the prosecutor asked Jankowski if it was possible that she had erred by omitting the word "not," i.e., that Dr. Peacock had said the injury could not have been caused by wrestling. Although Jankowski did not recall the conversation, she expressed confidence that her report accurately recorded the conversation. The prosecutor then sought to question Jankowski about the actions she took after the conversation in question to show her handling of the case thereafter was not consistent with that statement as recorded. Defense counsel objected. The court ruled that the prosecutor would be permitted to "explore . . . a little bit, if the course of conduct was consistent with what was reported, particularly with regard to that statement."

Contrary to defendant's characterization, this was not an example of prosecutorial misconduct but rather, of an adverse evidentiary ruling, which we review for an abuse of discretion. See Board of Educ., supra, 409 N.J. Super. at 430. We discern none here.

D.

Defendant also contends that three comments made by the prosecutor during the course of his summation deprived him of a fair trial.

To justify a reversal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)). In determining whether the prosecutor's comments warrant reversal of a conviction, we consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Smith, 167 N.J. 158, 182 (2001); Timmendequas, supra, 161 N.J. at 575; State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

The first comment complained of here was that defendant's interview was not recorded because the room was not equipped with a video camera at the time. Upon defense counsel's objection, the prosecutor stated that he believed the lieutenant had said that. The court overruled the objection and instructed the jury that the statements of attorneys were not evidence and that it was their recollection of the evidence that controls. Defendant has not identified what prejudice he suffered as a result of this comment, and we are satisfied that the court's instruction adequately met any error in the comment.

The second referred to the videotape of Kenny's statement. The prosecutor stated, "[y]ou didn't see the videotape. The law doesn't permit it." Defense counsel objected. The court sustained the objection and immediately addressed the jury,

With regard to the videotape, you're not to consider the videotape, the fact that there is a videotape, other than for the fact that the doctor considered that videotape in formulating his opinion. And I'll charge you in more detail on that.

Again, the court's instruction fully and immediately addressed the potential prejudice in the prosecutor's comment.

The third comment concerned a suggestion by the prosecutor that defendant slept late on the day Kedar was injured because he was hung over. There was no objection to this comment.

The absence of a contemporaneous objection suggests "that defense counsel did not believe the remarks were prejudicial at the time they were made." Timmendequas, supra, 161 N.J. at 576. The failure to object also deprives the court of the opportunity to take appropriate curative action. Ibid. As a general rule, such unchallenged comments will not be deemed to be prejudicial. Ibid. The comments made by the prosecutor here were not inflammatory, highly emotional or likely to distract the jury from a fair consideration of the evidence of guilt. See Marshall, supra, 123 N.J. at 161. The comments fall far short of the standard of "conduct . . . so egregious that it deprives the defendant of a fair trial" necessary to establish plain error. State v. Loftin, 146 N.J. 295, 386 (1996) (internal citation and quotation marks omitted); see also State v Wakefield, 190 N.J. 397, 453 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Frost, supra, 158 N.J. at 83.

Accordingly, we see no grounds for reversal in the comments complained of.

IV

Defendant was acquitted of the most serious charge against him. Yet, in Point IV, defendant argues that he was denied the effective assistance of counsel. He alleges that his trial attorney's performance fell below the standard of professionally competent assistance because he failed to file a motion to suppress statements made by defendant; failed to contact defendant's brother, Thomas Bigalow, and cousin, Keith King, to determine what information they had relevant to the case;*fn5 failed to object to "multiple issues at trial[,]" including Detective Cannon's testimony regarding a prior child abuse allegation and the testimony of Sarah Jankowski regarding the presence of alcoholic beverages in defendant's home; and failed to argue for a judgment of acquittal as to count three of the indictment alleging endangering the welfare of a child. Defendant also contends "the trial record is full of hearsay statements that were not objected to." He does not, however, identify any of the statements that should have drawn an objection or how he was prejudiced by any of them.

In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); see also State v. Fritz, l05 N.J. 42 (l987). In general, claims of ineffective assistance of counsel are not considered on direct appeal, "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992).

That is the case here. Each of these allegations calls into question the exercise of professional judgment by the trial attorney. To assess whether any of these claims meet the Strickland/Fritz standard to warrant relief, it would therefore be necessary to explore matters that lie outside the record, such as the attorney's reasoning in making these litigation choices. Accordingly, these matters are better considered within the context of a petition for post-conviction relief. See, e.g., State v. Cooper, 410 N.J. Super. 43, 56 (App. Div. 2009), certif. denied, 201 N.J. 155 (2010).

V Defendant challenges his sentence as excessive and argues the trial judge erred in imposing consecutive sentences.

Our standard of review is one of deference. Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); see also N.J.S.A. 2C:43-2(e); R. 3:21-4(g). Although the judge has discretion as to the weight to be given to each factor, the judge lacks discretion to decline to "take into account a mitigating factor that is fully supported by the evidence," but "must [include such factor as] part of the deliberative process." State v. Dalziel, 182 N.J. 494, 504-05 (2005).

The trial court found aggravating factors (1) (nature and circumstances of offense); (2) (gravity and seriousness of harm inflicted on the victim, whom the defendant knew was particularly vulnerable or incapable of resistance due to extreme youth); (3) (risk that the defendant will commit another offense); and (9) (need to deter defendant and others).

N.J.S.A. 2C:44-1(a). The court found only one mitigating factor, that defendant had only a limited juvenile history, N.J.S.A. 2C:44-1(b)(7), and gave that factor "light weight" because the juvenile matter involved an act of violence.

Defendant argues that there was an inadequate record for the court to find aggravating factor (1) because he did seek medical attention for Kedar over the telephone and the jury only convicted him of a reckless act. However, the court noted that defendant stood by and let Kedar suffer rather than seek prompt medical treatment. The court relied on Kenny's testimony that Kedar began crying and immediately became ill after defendant struck him and Dr. Peacock's testimony that the pain suffered by Kedar equated to that from a burst appendix. The judge concluded that the offense was "a brutal and senseless act on a five-year-old child."

Defendant also contends there was an inadequate record to support a finding of aggravating factor (2), although he does not elaborate on that point. In finding this factor, the judge observed that Kedar's age made him particularly vulnerable.

As to aggravating factor (3), defendant argues that the trial court erred in considering the fact that DYFS had conducted two investigations of him that did not result in substantiations of abuse. However, the court noted that those investigations were not being considered as evidence that defendant had committed abuse in the past. Rather, the court considered the fact of the investigations in a manner analogous to the consideration of prior arrests not resulting in convictions. See State v. Brooks, 175 N.J. 215, 228 (2002); State v. Green, 62 N.J. 547, 571 (1973); State v. Walters, 279 N.J. Super. 626, 633 (App. Div.), certif. denied, 141 N.J. 96 (1995); State v. Tanksley, 245 N.J. Super. 390, 396-397 (App. Div. 1991). The investigations gave defendant reason to be aware that he was subject to investigation for abuse of children. The court observed that his failure to be more circumspect provided a basis for concluding that he was at risk for committing another offense.

Although defendant contends that mitigating factors (2) (defendant did not contemplate serious harm); (8) (circumstances unlikely to recur); and (9) (defendant unlikely to commit another offense); N.J.S.A. 2C:44-1(b), were "clearly supported by the record[,]" he fails to articulate how this is so. We note that defendant has never claimed he did not contemplate serious harm from his actions. His unwavering position has been that he did not inflict the fatal blow and so, a finding of mitigating factor (2) is inconsistent with that position. The trial court considered and rejected mitigating factor (8) based upon defendant's prior DYFS involvement.

We discern no abuse of discretion in the court's findings of aggravating and mitigating factors or its determination that the aggravating factors outweighed the mitigating factors.

The court imposed a sentence of nine years subject to NERA and three years parole supervision on the reckless manslaughter charge. A concurrent term of nine years was imposed on the endangering count that arose from the infliction of the fatal blow. The second endangering count arose from defendant's failure to seek medical attention after Kedar was injured. Citing State v. Yarbough, 100 N.J. 627 (1985), the court noted that this offense occurred after the infliction of the harm upon the victim and found that it was a separate and distinct offense, warranting a consecutive sentence of nine years. Indeed, it could be argued that allowing Kedar to linger in excruciating pain for approximately one full day while his life dwindled away merits greater punishment than the reckless infliction of a single blow. We find no basis to disturb the court's conclusion that consecutive sentences were appropriate here. See State v. Cassady, 198 N.J. 165, 183-84 (2009).

VI

Finally, defendant argues that the jury's verdict was against the weight of the evidence. Giving "due regard to the opportunity of the jury to pass upon the credibility of the witnesses," it does not "clearly and convincingly appear[] that there was a manifest denial of justice under the law." See R. 3:20-1. We are therefore satisfied that this argument lacks merit.

To the extent we have not addressed any remaining arguments raised by defendant, we have not done so because we are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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