STATE OF NEW JERSEY VS. JAMES MESSINO (99-02-0113, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2888-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES MESSINO,

Defendant-Appellant.

Argued December 17, 2018 – Decided January 16, 2019

Before Judges Gooden Brown and Rose.

On appeal from Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 99-02-
0113.

Frank M. Gennaro, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Frank M. Gennaro, on the briefs).

Staci L. Scheetz, Senior Assistant Prosecutor, argued
the cause for respondent (Charles A. Fiore, Gloucester
County Prosecutor, attorney; Staci L. Scheetz, on the
brief).

PER CURIAM
 This matter returns to us after a remand to the Law Division for an

evidentiary hearing on defendant James Messino's petition for post-conviction

relief (PCR). State v. Messino, No. A-0535-08 (App. Div. Dec. 27, 2010) (slip

op. at 2, 12) (initial PCR opinion). 1 On remand, another PCR judge conducted

a multiple-day hearing, spanning one and-one-half years, and denied PCR in a

thirty-six-page written opinion. On appeal, defendant renews his claims that his

trial counsel provided ineffective representation by failing to: obtain necessary

medical records and hire an expert in a timely manner; properly conduct an

investigation; and present the testimony of necessary fact, expert and character

witnesses. Defendant also claims counsel was ineffective by committing a

"myriad" of cumulative errors. He urges us to conduct a de novo review of the

record, contending the PCR judge's findings are not supported by the record.

Having considered the record developed at the evidentiary hearing, we disagree

and affirm.

I.

1
Although citing an unpublished opinion is generally forbidden, we do so here
to provide a full understanding of the issues presented and pursuant to the
exception in Rule 1:36-3 that permits citation "to the extent required by res
judicata, collateral estoppel, the single controversy doctrine or any other similar
principle of law . . . ." See Badiali v. N.J. Mfrs. Ins. Grp., 429 N.J. Super. 121,
126 n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015).

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 A.

We incorporate by reference the facts and procedural history set forth at

length in our initial PCR opinion, Messino, slip op. at 2-7, and in our reported

opinion denying defendant's direct appeal. State v. Messino, 378 N.J. Super.

559, 568-74 (App. Div.), certif. denied, 185 N.J. 297 (2005). We summarize

those facts that provide context to the present appeal.

On May 31, 1988, twenty-three-month-old D.R. died in bed in the home

he shared with Laurie Roberts, D.R.'s mother and defendant's paramour. Two

days before he died, D.R. underwent surgery to correct a congenital disorder,

described as "an enlarged scrotum resulting from 'hydrocele' or fluid around the

testicles." Id. at 569. While performing the procedure, D.R.'s surgeon observed

that the child's "scrotum was slightly enlarged and bruised and the bruising

extended to D.R.'s lower abdomen." Ibid. The surgeon also "observed blood in

the tissues surrounding D.R.'s scrotum, which he had never seen when

performing a hydrocele reduction procedure." Id. at 569-70. "D.R. 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." Id. at 569.

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 Early in the morning of his death, D.R. woke up suddenly. Roberts

comforted D.R. and then handed him to defendant, who returned D.R. to his bed.

In doing so, defendant dropped D.R. on a metal bed rail, but failed to inform

Roberts, who was not in the room at that time. "Roberts and defendant went to

bed, but shortly thereafter Roberts heard D.R. making a gagging sound. She

went to the child and saw that his body was 'clenching and unclenching.'" Id. at

570. "Roberts thought that D.R. was having a seizure. Roberts and defendant

called 911." Ibid. A paramedic and an emergency room doctor both testified

that D.R.'s right flank and his testicles were very swollen. Id. at 570-71. D.R.

died within hours of his admission to the hospital.

"[T]he autopsy revealed that the surgical incision that had been made in

the hydrocele procedure was open and gaping." Id. at 571. The medical

examiner testified at trial "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." Ibid. Observing that approximately one "quart of blood had

collected in D.R.'s abdominal cavity[,]" the medical examiner determined the

cause of D.R.'s death was "hypovolemic shock." Ibid. (internal quotation marks

omitted). The medical examiner also testified that the bruise on D.R.'s abdomen

"might be the result of child abuse and homicide." Ibid.

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 "Evidence also was presented at trial concerning injuries that D.R. had

sustained in the months preceding his death." Ibid. Those injuries included a

spiral fracture in D.R.'s left tibia and a femur fracture. Id. at 571-72. An

orthopedic surgeon, who treated D.R. three months before his death, opined that

"two fractures in the same leg within a one-month period . . . is 'one of the

hallmarks of child abuse.'" Id. at 572. Two other doctors, who also treated D.R.

at that time, agreed there was no causal relationship between MPS and bone

fractures. Ibid. Another surgeon who also "treated D.R. in February 1998 for

the multiple fractures . . . testified that D.R. had normal bone density and his

bones were not especially brittle." Ibid. According to that surgeon's

observations, "there was no doubt that D.R. had been physically abused." Ibid.

Defendant failed to inform the paramedics or hospital staff that he had

dropped D.R. on the metal rail. During his interviews with police, defendant

eventually admitted he dropped D.R., who fell "about one or one-and-a-half

feet[,]" striking his upper chest against the bed railing. Id. at 573. Thereafter,

defendant and Roberts 2 were indicted for knowing or purposeful first-degree

2
Prior to defendant's trial, Roberts pled guilty to obstruction of justice, N.J.S.A.
2C:29-1, with a probationary recommendation by the State, in exchange for her
cooperation against defendant.
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murder, N.J.S.A. 2C:11-3(a)(1) or (2), and second-degree endangering the

welfare of a child, N.J.S.A. 2C:24-4(a)(2).

Although defendant did not testify at trial, two expert witnesses testified

on his behalf: Dr. Roger A. Berg, a radiologist; and Dr. John E. Adams, a

forensic pathologist. Id. at 574. Dr. Berg "opined that the x-rays taken of D.R.'s

tibia fracture indicated that it was a 'toddler's fracture' which is common in

children learning to walk[, and] . . . the femur fracture could have been caused

by a fall." Ibid. Among other things, Dr. Adams testified that

D.R.'s abdominal injury was not consistent with a fist
blow. He asserted that D.R. had some sort of blood
clotting problem but he did not know its cause. He also
stated that D.R.'s abdominal bruise could have been the
result of striking the right flank against the rail of the
bed when he fell from defendant's hands. Adams said
that the patterns in the bruise were not the sort of
patterns that could have resulted from a bare fist.

[Ibid.]

Following a jury trial, defendant was convicted of first-degree aggravated

manslaughter, N.J.S.A. 2C:11-4(a)(1), a lesser-included offense of murder, and

second-degree endangering the welfare of a child. He was sentenced to an

aggregate twenty-nine-year term of imprisonment subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2(d)(2) and (20).

A-2888-16T4
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 Although the PCR court initially denied defendant's petition without an

evidentiary hearing, we directed the court to conduct such a hearing on remand.

We framed the issues raised by defendant as follows:

Unquestionably, the medical issues in the case
were complex. The expert reports defendant submitted
in support of his petition contain opinions confirming
the opinion of Dr. Adams that D[.R.]'s pre-existing
MPS complicated "by failure of the child's clotting
mechanism, [were] absolutely unique[.]" Under these
circumstances, testimony from additional experts
cannot be viewed as cumulative for purposes of
determining whether, if called, their testimony would
have altered the jury verdict. Given the inference of
abuse that could be drawn from [the] testimony [of
Roberts' aunt] that D[.R.] started to sustain injuries
after defendant and Roberts started dating, testimony
from character witnesses and additional experts, as well
as from the [Division of Youth and Family Services
(DYFS)3] workers who conducted an investigation into
suspected abuse, may have altered the jury's verdict.

Defendant was indicted for knowing or
purposeful murder but found guilty of aggravated
manslaughter, "recklessly caus[ing] death under
circumstances manifesting extreme indifference to
human life." N.J.S.A. 2C:11-4. In his statement to
police, he claimed that D[.R.]'s death was an accident.
If trial counsel and his firm were provided with
sufficient funds, as defendant alleges, to mount a
comprehensive investigation, particularly with respect
to the medical issues that were unquestionably critical
to defendant's defense, and trial counsel inexplicably
failed to do so, ineffective assistance of counsel may be

3
DYFS is now known as the Division of Child Protection and Permanency.
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 established. On the other hand, it may very well be that
these and other options were properly considered,
investigated and ultimately rejected by trial counsel for
perfectly valid reasons, including strategic reasons, in
which case defendant is not entitled to relief.
"[S]trategic choices made after thorough investigation
of law and facts relevant to plausible options are
virtually unchallengeable" in a claim for [PCR] based
upon ineffective assistance of counsel. State v.
Cooper, 410 N.J. Super. 43, 57 (App. Div. 2009)
(quoting Strickland [v. Washington], 466 U.S. [668,]
690-91 [(1984)]).

We are satisfied, however, that the proofs
presented in support of the petition represent more than
bald assertions. Defendant's allegations were
supported by affidavits based upon the personal
knowledge of the affiants, expert reports and DYFS
records. If believed, a jury may have reasonably
concluded that D[.R.]'s death was accidental rather than
as a result of reckless indifference to the value of
human life for which defendant was convicted.

[Messino, slip op. at 10-12 (emphasis added).]

We therefore found defendant had established a prima facie claim of ineffectiv e

assistance of counsel, and an evidentiary hearing was necessary "to further flesh

out his claims." Id. at 13.

B.

On numerous dates between December 9, 2014 and June 24, 2016, Judge

Robert P. Becker, Jr. conducted an evidentiary hearing during which defendant

testified and presented the testimony of more than twenty witnesses: Dr. Phillip

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Ginsberg, a urology expert; Dr. Robert Stratton, a child abuse expert; Alexander

Esposito, a private investigator and Dr. Claus Speth, a forensic consultant, who

were retained by his trial counsel to assist in preparation of defendant's trial; a

registered nurse and a nursing consultant who assisted DYFS in its evaluation

of D.R.'s home prior to his death; and fourteen of the more than thirty witnesses

defendant claimed in his PCR petition would have testified as character

witnesses at trial. Included among those witnesses were defendant's mother,

brother, aunt, co-workers, and friends. Defendant's trial counsel, Jaime Kaigh,

testified on behalf of the State over the course of five days.

Notably, Kaigh explained that after obtaining defendant's file, he

reviewed all discovery including recorded statements, transcripts, diagrams,

hospital records, police reports, and lists of potential witnesses. Kaigh obtained

voluminous out-of-state medical records detailing D.R.'s medical history. Kaigh

summarized the defense theory of the case as follows:

[D.R.] suffered from MPS. There were allegations of
child abuse that had to be addressed in conjunction with
the allegation of murder and homicide. The child was
reported to have scratched corneas. Cloudy corneas are
part of MPS.

The child was reported to have hair pulled out,
when in reality it was alopecia. A disease causing the
hair loss.

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 ....

The child was reported to have had multiple leg
fractures, yet, they can be explained as toddler
fractures. The second fracture coming when he was
wearing a cast.

So, all the allegations of child abuse could be
explained medically, either through the walking cast
that he had, the toddler fractures, the alopecia, the self-
abusive behavior of MPS.

So . . . my theory of the case was consistent with
[defendant's] last statement to the police, he
accidentally dropped this child. . . . he was in no way a
child abuser, all the abuse can be explained; and that
not every accident is reckless.

Certainly, the goal of this case was to get away from
knowing or purposeful conduct . . . murder. So, when
faced with a confession, that, [defendant] accidentally
dropped the child, the only theory of this case . . . borne
out through cross-examination of all the doctors, was
that this was an accidental death. And, the main
contributor was the MPS. Which also explained away
many of the allegations of child abuse.

[(Emphasis added)].

From the inception of his representation, Kaigh endeavored to find

medical experts, hiring Esposito to assist him. They first hired Speth as a

medical consultant, who opined that D.R.'s death was related to his MPS and

"the bed that [D.R.] slept in could have caused the injury if . . . defendant

A-2888-16T4
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dropped the child as he described in his second taped statement." Because he

had a criminal conviction, Speth did not testify at trial.

Kaigh also hired Dr. John Smialek, a forensic pathologist. However, Dr.

Smialek withdrew his assistance because he disagreed with Speth's theory of the

case. Dr. Smialek died sometime after withdrawing from the case.

Thereafter, Kaigh attempted to retain Dr. Michael Baden, whom Kaigh

described as "probably the most revered pathologist in the country." However,

Dr. Baden was unable to author a report that was beneficial to the defense

because he believed defendant dropped D.R. and that such conduct was evidence

of manslaughter or aggravated manslaughter.

After Dr. Baden withdrew from the defense team, Dr. Adams, who had

written a report on behalf of Roberts, agreed with Speth's theory and agreed to

author a report supporting that viewpoint. Apparently, Dr. Adams 's report was

not furnished to the State until just prior to trial. Kaigh acknowledged that the

lateness of Adams's report and the previous report he had authored on behalf of

Roberts opining that D.R.'s injuries were not caused by accidental means, likely

were not viewed favorably by the jury. Nonetheless, Kaigh thought Adams was

a qualified forensic pathologist, a good witness, and someone who could

convince a jury of his point of view.

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 Kaigh also addressed other aspects of his trial strategy. For example, he

discussed his exhaustive search to locate an expert in Hurler-Scheie Syndrome,

the specific type of MPS that afflicted D.R., and his decision to refrain from

pursuing additional test results, which had been sent to Australia concerning

D.R.'s corneal injuries, concluding they were not pertinent to the specific type

of MPS at issue in the case. Further, Kaigh reviewed the DYFS records and

determined that they did not pertain to an investigation of defendant, but rather

to the caretaking of D.R. Kaigh also determined it was unnecessary for Esposito

to conduct interviews of the State's witnesses. Specifically, Roberts had

informed Kaigh "repeatedly that all of her family members didn't like

[defendant], and that [D.R.] . . . would cry out when [defendant] came near

[him]."

In discussing his reasons for refraining from calling character witnesses,

Kaigh emphasized that since defendant previously lied to first responders and

the police, Kaigh believed it would be "extremely self-defeating when a person

has lied" to place before the jury defendant's character for honesty through his

family and friends. According to Kaigh, "[m]ost lay people who make up [a]

jury are going to say, [']a mother would say anything for her child, whether it's

true or not[.']" During the evidentiary hearing, defendant's proposed character

A-2888-16T4
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witnesses gave contradictory or non-responsive answers to the State's question

whether their opinion for truthfulness would "change if [they] knew [d]efendant

lied to the police about what happened in this case[.]"

Among the other witnesses who testified at the hearing, Dr. Ginsberg

opined that he reviewed D.R.'s hemoglobin tests, which indicated to him that the

child was bleeding before he arrived at the hospital for his hydrocele surgery.

However, Dr. Ginsberg acknowledged that the swelling to D.R.'s testicle could

have been caused by trauma. He conceded that in his twenty-five years of

practice he had never treated a patient with MPS.

On June 24, 2016, Judge Becker issued a comprehensive written opinion

concluding defendant's claims lacked merit. Notably, the judge found "Kaigh

to be credible in every respect during his testimony." The judge elaborated:

The [c]ourt finds that [d]efendant's assertion that
trial counsel was constitutionally ineffective for not
calling an expert witness specializing in MPS, as well
as other potential expert witnesses, does not satisfy the
Strickland/Fritz [4] threshold. The [c]ourt finds that trial
counsel, Mr. Kaigh, is credible and exhausted all
possibilities with respect to researching, contacting,
and pursuing all potential expert witnesses for trial.
The [c]ourt is satisfied that Mr. Kaigh's conduct [was]
illustrative of zealous advocacy, not ineffective
representation that would entitle [d]efendant to relief.

4
Strickland, 466 U.S. at 687-88; State v. Fritz, 105 N.J. 42, 58 (1987) (adopting
the Strickland two-part test in New Jersey).
A-2888-16T4
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 This is especially true when considering that matters of
strategy are given a level of deference.

Judge Becker also found that trial counsel conducted a reasonable

investigation into the allegations of child abuse. Similarly, he found Kaigh 's

decision not to present character witnesses to be a reasonable trial strategy

intended to avoid highlighting defendant's initial lies. Specifically:

Defendant basically acknowledged that some form of
mishap occurred which caused the child to have the
resultant injuries. This admission came after initial
denials of the child having been subject[ed] to a mishap
such as dropping, throwing or striking. One can say
that . . . [d]efendant accepted the victim with the
conditions the child had on the day of the incident or
mishap. . . . Defendant was not subsequently convicted
of [p]urpose[ful] or [k]nowing [m]urder, but of a
lesser[-]included offense of [a]ggravated
[m]anslaughter, along with a separate charge of
[e]ndangering the [w]elfare of a [c]hild. This verdict
points to the fact that Mr. Kaigh's representation was in
fact effective. It could be reasonably concluded that the
jury verdict was based upon . . . [d]efendant's actions
with [a] child who was in a precarious situation health[-
]wise and that the subsequent admission by . . .
[d]efendant regarding the mishap was enough to
constitute [aggravated m]anslaughter. If . . .
[d]efendant had acted to assist the child immediately,
the result may have been different.

Finally, Judge Becker concluded defendant failed to demonstrate a

reasonable probability that trial counsel's deficiencies prejudiced defendant.

Conversely, Kaigh was successful in his representation of defendant because the

A-2888-16T4
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jury found defendant guilty of the lesser-included aggravated manslaughter

charge, rather than knowing or purposeful murder. Accordingly, Judge Becker

denied defendant's petition for post-conviction relief. This appeal followed.

II.

Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to [the] PCR court's factual findings based on its

review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013); see

also State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014) ("If a court

has conducted an evidentiary hearing on a petition for PCR, we necessarily defer

to the trial court's factual findings."). Where an evidentiary hearing has been

held, we should not disturb "the PCR court's findings that are supported by

sufficient credible evidence in the record." State v. Pierre, 223 N.J. 560, 576

(2015) (internal quotation marks omitted) (quoting Nash, 212 N.J. at 540). We

review any legal conclusions of the trial court de novo. Nash, 212 N.J. at 540-

41; State v. Harris, 181 N.J. 391, 419 (2004).

"[A] defendant asserting ineffective assistance of counsel on PCR bears

the burden of proving his or her right to relief by a preponderance of the

evidence." State v. Gaitan, 209 N.J. 339, 350 (2012). A defendant must prove

counsel's performance was deficient; it must be demonstrated that counsel's

A-2888-16T4
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handling of the matter "fell below an objective standard of reasonableness" and

that "counsel made errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466

U.S. at 687-88; State v. Fritz, 105 N.J. 42, 52 (1987).

A defendant must also prove counsel's "deficient performance prejudiced

the defense." Strickland, 466 U.S. at 687. Prejudice is established by showing

a "reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different." Id. at 694. Thus, petitioner must

establish that counsel's performance was deficient and petitioner suffered

prejudice in order to obtain a reversal of the challenged conviction. Id. at 687;

Fritz, 105 N.J. at 52.

We have duly considered defendant's contentions before us in light of the

record, the applicable law, and the trial court's credibility findings. Having done

so, we affirm the denial of defendant's PCR petition, substantially for the sound

reasons expressed in Judge Becker's post-hearing written decision. Only a few

comments are warranted.

The judge discussed Kaigh's decision to refrain from presenting the

testimony of Dr. Baden and defendant's family members, friends and co-workers

against the backdrop of the case law which recognizes that the decision as to

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which witnesses to call is "one of the most difficult strategic decisions that any

trial attorney must confront." State v. Arthur, 184 N.J. 307, 320 (2005). The

decision is generally informed by the testimony expected to be elicited, the

possibility of impeachment, both by prior inconsistencies or conflicting

testimony by other witnesses, and the witness's general credibility. Id. at 320-

21. "Therefore, like other aspects of trial representation, a defense attorney's

decision concerning which witnesses to call to the stand is 'an art,' and a court's

review of such a decision should be 'highly deferential.'" Ibid. (citation omitted).

In sum, the evidentiary hearing that defendant sought and received

provides no basis to set aside his conviction and sentence. We are satisfied the

options delineated in our initial PCR opinion "were properly considered,

investigated, and ultimately rejected by trial counsel for perfectly valid reasons,

including strategic reasons . . . ." Messino, slip op. at 12. We accept Judge

Becker's well-reasoned determination that defendant failed to prove either prong

of the Strickland standard. We therefore see no reason to disturb the judge's

factual and credibility findings. Those findings are fully supported by the record

and are entitled to our deference. State v. Robinson, 200 N.J. 1, 15 (2009).

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 To the extent we have not addressed defendant's remaining claims, we

conclude they lack sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2).

Affirmed.

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