State v. Muniz

• Decision Date: 08 June 1977
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Lynda MUNIZ and Jose Muniz, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 436

150 N.J.Super. 436

375 A.2d 1234

STATE of New Jersey, Plaintiff-Respondent, v. Lynda MUNIZ and Jose Muniz, Defendants-Appellants.

Superior Court of New Jersey, Appellate Division.

Argued May 10, 1977.

Decided June 8, 1977.

Edward A. Halpern, Designated Counsel, Newark, for defendants-appellants (Stanley C. Van Ness, Public Defender, attorney).

William F. Bolan, Jr., Deputy Atty. Gen., for plaintiff-respondent (William F. Hyland, Atty. Gen., attorney).

Before Judges MATTHEWS, SEIDMAN and HORN.

The opinion of the court was delivered by

HORN, J. A. D.

Defendants Jose Muniz and Lynda Muniz, his wife, were charged with abusing and being cruel to their daughter Joanne (first count) and with neglecting said daughter (second count), both in violation of N.J.S.A. 9:6-3. Jointly tried to a jury, Jose was convicted of cruelty on the first count and acquitted of neglect on the second count. Lynda was acquitted of abuse and cruelty on the first count and convicted of neglect on the second count.

The judge sentenced Jose to a term of 18 months in the Hudson County Penitentiary and Lynda to a term of one year in the same institution. Lynda's sentence was suspended and she was placed on probation for three years. This appeal by both defendants followed.

Defendants contend that they are each entitled to a reversal of their respective convictions for numerous reasons which are related hereafter.

I

At the close of the State's case both defendants unsuccessfully moved for judgments of acquittal. These motions were renewed after the evidence of all parties had been closed. The judge reserved decision. Following the verdicts each defendant moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The judge denied the motions. Since the test as to whether a motion for acquittal and a motion for judgment notwithstanding the verdict is the same, State v. Kluber, 130 N.J.Super. 336, 341, 327 A.2d 232 (App.Div.1974), certif. den. 67 N.J. 72, 335 A.2d 25 (1975), we will consider these motions together.

Whether the judge considers a motion for judgment of acquittal at the close of the State's case or after all the evidence is closed the test to be applied is the same whether the evidence submitted by the State, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459, 236 A.2d 385 (1967); State v. Fiorello, 36 N.J. 80, 86-87, 90-91, 174 A.2d 900 (1961), cert den. 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d 396 (1962); State v. Kluber, supra, 130 N.J.Super. at 341-342, 327 A.2d 232. On such a motion the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State. State v. Kluber, supra.

The State, in addition to introducing in evidence the grand jury testimony of defendants, also presented testimony of Daisy Castillo, sister of Jose, and of a registered pediatric nurse and a physician, both of whom are affiliated with St. Mary's Hospital.

The evidence tended to establish that defendants were married and were the parents of Joanne, who was born on September 17, 1973. She was about five weeks old on October 29, 1973. On the latter date, sometime around eight o'clock in the morning, defendants brought Joanne to St. Mary's Hospital. Examination revealed two bruises in the rib area, bilateral fractures of eight ribs ¹, a distended and rigid abdomen, scratches on her face and upper thighs, two ulcerated patches at the back of her throat, sores around her lips, crusted area around the umbilicus, cradle cap, dirt under both arms, discoloration at the right and left lower rib areas, continued crying and rapid respiration.

When lifted by the doctor the child's ribs "crunched." The doctor testified that the ribs of a five-week infant are more elastic than those of an adult and hence are difficult to break. He also stated that in his opinion the rib injuries were sustained within 28 to 48 hours of admission, but that it was more likely that the injuries occurred within 10 to 12 hours of admission. This latter conclusion was arrived at because a baby with such multiple fractured ribs would cry refuse feedings and would cause anyone taking care of her to seek help.

He also opined that the fractures could not have been the result of a fall or self-inflicted, nor could they have been caused by either an adult's or a child's hugging the infant.

The grand jury testimony of defendants which was read to the jury tended to show that the child had been continuously in the custody of her parents on October 28, 1973, a Sunday, and on October 29 until she was brought to the hospital, with the exception of about two to three hours when she was left with Daisy Castillo. On Sunday, the 28th, defendants left Joanne at the home of Mrs. Castillo while they visited a cemetery. When they returned about two hours later Mrs. Castillo mentioned that the baby had been crying and would not take her milk, and suggested that Joanne might be sick and should be taken to the hospital.

Although Jose testified before the grand jury that they decided to take the child to the hospital at about four o'clock in the morning of October 29 because of the baby's sustained crying, there was no explanation of how the injuries were inflicted. Both defendants said Joanne behaved normally from the time they returned home after taking her from Mrs. Castillo's care until the early hours of October 29.

The State was obliged to prove its case against defendants here, as in so many child-abuse cases, by means of circumstantial evidence. If circumstantial evidence is of sufficient quality to convince a jury beyond a reasonable doubt of defendants' guilt, it does not matter that it is circumstantial. State v. Dancyger, 29 N.J. 76, 84, 148 A.2d 155 (1959), cert. den. 360 U.S. 903, 79 S.Ct. 1286, 3 L.Ed. 2d 1255 (1959); State v. Leicht, 124 N.J.Super. 127, 134-135, 305 A.2d 78 (App.Div.1973). Circumstantial evidence is often more persuasive than direct evidence. State v. Mayberry, 52 N.J. 413, 437, 245 A.2d 481 (1968), cert. den. 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969); State v. Corby, 28 N.J. 106, 119, 145 A.2d 289 (1958), overruled in part on other grounds, State v. Taylor 46 N.J. 316, 336, 217 A.2d 1 (1966), cert. den. 385 U.S. 855, 87 S.Ct. 103, 17 L.Ed.2d 83 (1966). It has been recognized in numerous cases that since criminal activities are ordinarily not recognizably performed in the open, proof of such activities can only be established by circumstantial evidence. State v. Bulna, 46 N.J.Super. 313, 318, 134 A.2d 738 (App.Div.1957), aff'd 27 N.J. 93, 141 A.2d 529 (1958). See also, State v. DeLouisa, 89 N.J.Super. 596, 605, 215 A.2d 794 (Cty.Ct.1965).

The core of defendants' argument under this point seems to be that there was insufficient circumstantial evidence to warrant the jury's conclusion, i. e., that the evidence did not generate inferences of the necessary elements of the crimes "grounded in strong probability." State v. Trypuc, 53 N.J.Super. 6, 12, 146 A.2d 503 (App.Div.1958); State v. Lamoreaux, 13 N.J.Super. 99, 103, 80 A.2d 213 (App.Div.1951).

What was stated about this subject in State v. Mayberry, supra, is particularly appropriate when applied to the circumstantial evidence adduced before the jury in this case:

The defendant Kestner asserts that the State's proof of attempted robbery was circumstantial rather than direct and was insufficient to satisfy the requirements of State v. Donohue, 2 N.J. 381, 67 A.2d 152 (1949). In Donohue the Court expressed the sweeping view that when the State's evidence is circumstantial "all of the circumstances not only must concur to indicate a defendant's guilt but they must also be inconsistent with any other rational conclusion" and they must exclude "every other hypothesis except that of guilt." 2 N.J., at p. 390, 67 A.2d at p. 157. This broad expression was never applied literally, for if it had been it would have unreasonably defeated many legitimate prosecutions based on circumstantial evidence where it was possible "to devise speculative hypotheses consistent with defendant's innocence." People v. Sullivan, 22 Ill.2d 122, 174 N.E.2d 860, 861 (1961).

* * * It should no longer be cited to us for under the later formulation the proper issue is simply whether the evidence, viewed in its entirety including the legitimate inferences therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond reasonable doubt. See State v. Fiorello, supra, 36 N.J. 80, 174 A.2d 900; State v. Ray, supra, 43 N.J. 19, 202 A.2d 425. The approach is the same though the testimony is circumstantial rather than direct; indeed in many situations circumstantial evidence may be "more forceful and more persuasive than direct evidence." State v. Corby, 28 N.J. 106, 119, 145 A.2d 289, 296 (1958); * * * . (52 N.J. at 436-437, 245 A.2d at 493)

Defendants concede that the evidence was strong enough to permit the jury to find that defendants were the parents of the child; that the injuries occurred within 48 hours of the doctor's examination, with the probability that they occurred even closer to the time of the hospital examination of the child around 10 a. m. on October 29; that defendants were in custody of the child; that the injuries could not have occurred by accident; that the injuries caused pain to the child, reflected in its crying and in other manifestations, and that the jury could reasonably have ruled out the probability of the injuries being incurred while the child was in Mrs. Castillo's care.

We again observe that the charges levelled against defendants consisted of abuse and cruelty on the...