RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0331-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN R. DONALDSON,
Defendant-Appellant. _______________________
Submitted February 14, 2024 – Decided August 28, 2024
Before Judges Vernoia, Gummer, and Walcott- Henderson.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-10- 1344.
Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Amira R. Scurato, Designated Counsel, on the brief).
LaChia L. Bradshaw, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM A jury convicted defendant Steven R. Donaldson of first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser included offense of
first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2), and second-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The child was the one-
year-old niece of his then-girlfriend. She died from blunt head trauma she had
suffered while in defendant's care. We affirmed defendant's conviction and
twenty-year sentence on his direct appeal, State v. Donaldson, No. A-2865-15
(App. Div. Apr. 1, 2019), and the Supreme Court denied his petition for
certification, State v. Donaldson, 240 N.J. 21 (2019). Defendant appeals from
an order denying his post-conviction relief (PCR) petition, which was decided
without an evidentiary hearing. He claims his pretrial and trial counsel had
provided ineffective assistance of counsel. Unpersuaded by his arguments, we
affirm.
Defendant was alone with the child and twin toddlers he shared with his
girlfriend when the injury occurred. He called 9-1-1 and reported the child was
not breathing. Following the instructions of the 9-1-1 operator, defendant
performed CPR on the child, compressing her chest and breathing into her
mouth. She did not have a pulse and was not breathing when police and
emergency medical personnel arrived and was pronounced dead at a hospital
A-0331-22 2 about an hour after defendant's 9-1-1 call. An autopsy conducted the next day
revealed she had died from blunt trauma to the head.
After the child was taken by ambulance to a hospital, a police sergeant
drove defendant to the police station, where he waived his Miranda rights1 and
was questioned. Defendant gave varying accounts of what had happened that
day, first stating the child had been asleep in her crib the entire time he was with
her, then stating he had changed her clothes at some point, and finally stating
she had fallen while trying to stand up. Before defendant left the station, a police
sergeant, who earlier had told defendant the child was "ok," informed him she
had died.
Two days later, defendant returned to the police station with an attorney
he had retained and spoke to the police again. He told a different version of
what had occurred: after he had picked the child up to change her diaper, she
pushed off him, slipped out of his grip, fell, and hit her head on the hardwood
floor. Defendant relayed that version to jurors when he testified at trial.
Defendant concedes the cause of death – blunt force trauma – was not
contested at trial, only the manner of death. The State presented twenty-two
witnesses in its case-in-chief at trial. The doctor who performed the autopsy
1 Miranda v. Ariz., 384 U.S. 436 (1966). A-0331-22 3 testified, opining the child could not have merely "fall[en] off a shoulder onto
the floor" but instead must "have slammed into something." He described her
injuries, including "a long gaping linear fracture" on her head, and concluded
the bruising on her body indicated blunt force.
The State also called as an expert witness a neuropathologist who had
examined the child's body. She told jurors the child, given the nature of her
injuries, could not "have obtained [her] injuries from a five-foot fall." She also
testified she had performed tests that showed the child died very soon after
impact, which is indicative of blunt trauma. The State also called as a witness
a professor of bioengineering and pediatrics. She had tested in a computer
simulation the fall described by defendant and found it "very difficult to
imagine" a short-distance fall, such as one from four or five feet as defendant
had described, could have caused the child's injuries.
In his testimony, defendant explained he had lied during his first statement
to police but had told the truth in his second statement. He presented three
expert witnesses – a forensic pathologist, a neuropathologist, and a
biomechanical engineer – who opined defendant's description of the fall was a
plausible explanation of the child's manner of death. However, the forensic
pathologist conceded falls from short distances rarely caused death in children.
A-0331-22 4 A grand jury had returned a two-count indictment charging defendant with
first-degree purposeful or knowing murder, N.J.S.A. 2C:11-3(a)(1) or 2C:11-
3(a)(2), and second-degree endangering welfare of a child, N.J.S.A. 2C:24-4(a).
The jury, however, convicted him of first-degree aggravated manslaughter,
N.J.S.A. 2C:11-4(a), as a lesser included offense of first-degree murder,
N.J.S.A. 2C:11-3(a)(1), (2), and second-degree endangering the welfare of a
child, N.J.S.A. 2C:24-4(a).
After our affirmance of defendant's convictions and sentence on his direct
appeal and the Supreme Court's denial of his petition for certification, defendant
timely filed a pro se PCR petition. He asserted his trial counsel had been
ineffective in not cross-examining the State's neuropathology expert witness.
Defendant's appointed PCR counsel submitted a brief in support of defendant's
petition, raising three additional arguments: defendant's trial counsel had been
ineffective in failing to object to preliminary jury instructions that were
purportedly lacking or misleading; defendant's pretrial counsel was ineffective
in allowing defendant to give a second statement to police with no evidence or
transcript of the first statement and without having conducted an investigation;
and during the first meeting at the police station, police lied to defendant about
A-0331-22 5 the child's condition. PCR counsel asked for an evidentiary hearing and an order
setting aside the conviction.
After hearing argument, the PCR judge entered an order and written
opinion denying the petition based on his finding defendant had failed to sustain
his burden of establishing his claims under the two-pronged standard established
by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984), and adopted by our Supreme Court for application under the New Jersey
Constitution in State v. Fritz, 105 N.J. 42 (1987). This appeal followed.
In his brief, defendant presents the following arguments for our
consideration:
POINT I
BECAUSE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM BOTH PRETRIAL AND TRIAL COUNSEL, THE PCR COURT ERRED IN DENYING DEFENDANT’S PETITION FOR RELIEF.
(A) Legal Standards Governing Applications For Post- Conviction Relief.
(B) Counsel Below Were Ineffective.
(1) The first defense attorney was ineffective when he allowed defendant to speak to the police a second time without first reviewing the evidence, including the first statement and the cause of death, and the recent decision in State v.
A-0331-22 6 Young [474 N.J. Super. 507 (App. Div. 2023), certif. denied, 254 N.J. 63 (2023)] was wrongly decided on this issue. [2]
(2) The Court failed to properly instruct the jury and defense trial counsel was ineffective for failing to challenge the errors.
(3) Counsel did not provide zealous representation at trial, to defendant’s detriment.
Defendant also faults the PCR judge for not addressing defendant's argument
about the police purportedly lying to him during the first meeting.
In the absence of an evidentiary hearing, we review de novo both the
factual inferences drawn from the record by the PCR judge and the judge's legal
conclusions. State v. Aburoumi, 464 N.J. Super. 326, 338 (App. Div. 2020).
We review a PCR judge's decision to deny a defendant's request for an
evidentiary hearing under an abuse-of-discretion standard. See State v. L.G.-
M., 462 N.J. Super. 357, 365 (App. Div. 2020).
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee defendants in a criminal
2 We do not address defendant's argument regarding that case because we consider substantively, for purposes of this appeal, his ineffective-assistance claim regarding his pretrial counsel and because the case is unpublished. See R. 1:36-3 ("[n]o unpublished opinion shall constitute precedent or be binding upon any court"). A-0331-22 7 proceeding the right to the assistance of counsel in their defense. The right to
counsel requires "the right to the effective assistance of counsel." State v. Nash,
212 N.J. 518, 541 (2013) (quoting Strickland, 466 U.S. at 686).
To establish an ineffective assistance of counsel claim, a defendant must
demonstrate: (1) "counsel's performance was deficient"; and (2) "the deficient
performance prejudiced the defense." Strickland, 466 U.S. at 687; see also Fritz,
105 N.J. at 58 (adopting the Strickland two-pronged analysis). "That is, the
defendant must establish, first, that 'counsel's representation fell below an
objective standard of reasonableness' and, second, that 'there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.'" State v. Alvarez, 473 N.J. Super. 448,
455 (App. Div. 2022) (quoting Strickland, 466 U.S. at 688, 694). "With respect
to both prongs of the Strickland test, 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
failure to satisfy either prong of the Strickland test requires the denial of a PCR
petition. Strickland, 466 U.S. at 700; Nash, 212 N.J. at 542.
To meet the first prong of the Strickland test, a defendant must show "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
A-0331-22 8 guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at
687. Reviewing courts must make "a strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance . . . ." Id. at
689; see also Nash, 212 N.J. at 542.
The second prong of the Strickland test requires a defendant to show "that
counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." Strickland, 466 U.S. at 687. A defendant must show
by a "reasonable probability" that the deficient performance affected the
outcome. Fritz, 105 N.J. at 58. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." State v. Pierre, 223 N.J.
560, 583 (2015) (quoting Strickland, 466 U.S. at 694; Fritz, 105 N.J. at 52).
Defendant argues the PCR judge erred in denying his claim that his
pretrial counsel had been ineffective in allowing him to speak with the police a
second time "without first reviewing the evidence, including the first statement
and the cause of death." Defendant, however, does not articulate what difference
that would have made. His testimony at trial about how the child was injured
matched the information he provided to police during their second meeting.
That version of events enabled him to present a defense supported by three
expert witnesses about the manner of the child's death. His PCR petition was
A-0331-22 9 not supported by a certification from him indicating his second statement or his
trial testimony would have been different had he received a transcript or other
evidence before he gave his second statement or that he needed a transcript to
recall the statements he had made to police two days previously.
Defendant simply asserts that allowing him to participate in the second
interview without first receiving a transcript or additional evidence was
ineffective assistance. But his bald assertions are not enough to establish a
prima facie case of ineffective assistance. See State v. Porter, 216 N.J. 343, 355
(2013) ("to establish a prima facie claim, a petitioner must do more than make
bald assertions that he was denied the effective assistance of counsel" (quoting
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999))). Without
explaining, much less actually demonstrating by a reasonable probability, how
not giving him before his second statement a transcript of the first statement or
other evidence affected the outcome, defendant failed to meet the Strickland
test. Fritz, 105 N.J. at 58.
In his merits brief, defendant cites as another example of his attorneys'
ineffectiveness defendant's inconsistent statements about his consumption of
vodka the evening the child had died, his pretrial attorney's purported advice on
that issue, and his trial attorney's decision to have him testify despite the
A-0331-22 10 inconsistencies. However, defendant did not raise that issue before the PCR
judge. We decline to consider it. See Alloco v. Ocean Beach & Bay Club, 456
N.J. Super. 124, 145 (App. Div. 2018) (applying "well-settled" principle that
appellate court will not consider an issue that was not raised before the trial
court); State v. Robinson, 200 N.J. 1, 19 (2009) ("The jurisdiction of appellate
courts rightly is bounded by the proofs and objections critically explored on the
record before the trial court by the parties themselves").
Defendant faults his trial counsel for not objecting to the preliminary
instructions the judge gave jurors during the jury-selection process and when
they were first impaneled after jury selection. Defendant contends the trial judge
failed to follow the model jury instructions on direct and indirect evidence , proof
beyond a reasonable doubt, and the role of the jury. He also argues the judge's
omission of defendant from the instruction about running into counsel outside
the courtroom would lead the jury to surmise defendant was incarcerated.
During jury selection, the trial judge explained the role of the jury and the
nature of the charges against defendant and gave the prospective jurors some
preliminary instructions. The trial judge explained the jurors must presume
defendant to be innocent, the burden of proof "rested with the State and [would]
A-0331-22 11 never shift[]," and the standard of proof was guilt beyond a reasonable doubt.
He explained that reasonable doubt meant:
an honest and a reasonable uncertainty in [the jurors'] mind[s] as to the guilt of defendant after [they] ha[d] carefully and impartially considered all of the evidence. A reasonable doubt may arise from the evidence presented or from a lack of evidence. It is a doubt which a reasonable person hearing the same evidence would have.
The trial judge specifically told the prospective jurors defendant's indictment
"must not be considered as evidence of guilt" and explained why.
After the jurors were selected, the trial judge told them that "during the
course of the trial, inevitably [they would] run across the path of" the prosecutor
and defense counsel and advised the jurors that the counselors were obligated to
avoid speaking with them. The trial judge did not mention potential interactions
jurors could have with defendant during the trial.
The trial judge's preliminary instructions largely tracked the model
instructions. See Model Jury Instructions (Criminal), "Preliminary Instructions
to the Jury" (rev. Sept. 1, 2022); Model Jury Instructions (Criminal),
"Reasonable Doubt" (rev. Feb. 24, 1997); Model Jury Instructions (Criminal),
"Circumstantial Evidence" (rev. Jan. 11, 1993). Any deviation was immaterial.
The trial judge's reasonable-doubt instructions tracked the material portion of
A-0331-22 12 the model instructions nearly verbatim. During preliminary instructions and the
instructions he gave at the end of the trial, the judge thoroughly addressed the
importance of jury duty and the role of a juror. The trial judge did not
specifically address situations where jurors might run into defendant during
breaks in the trial but clearly advised the jurors they should not presume
defendant to be guilty. The judge did not address circumstantial evidence during
his preliminary instructions but covered it in the instructions he gave at the end
of the case. He addressed the importance of "decid[ing] the case free of any
bias" prior to jury deliberations.
Defendant's assumption about what the jurors may have surmised is belied
by the judge's repeated instruction not to presume defendant to be guilty. On
this record, defendant has failed to support an ineffective-assistance claim based
on trial counsel not objecting to the preliminary jury instructions.
Regarding his claim trial counsel failed to zealously represent him,
defendant faults trial counsel for "not challeng[ing] in any meaningful way" the
testimony of the State's neuropathologist. In fact, trial counsel presented
testimony from three expert witnesses and used that testimony to dispute her
testimony and the State's theory of the case. On cross-examination, trial counsel
attempted to question the State's neuropathologist about her role as an expert in
A-0331-22 13 an Illinois case because a judge, acting as a factfinder in a related federal habeas
corpus proceeding, found her opinions in that case not believable due to an error
she had made. The trial judge sustained the State's objection to that line of
questioning, finding "its unrelated, it's not contrary to her testimony here ."
Defendant faults trial counsel because, after the trial judge sustained the State's
objection, he did not attempt to question the neuropathologist directly about the
error she had made in the other case.
The PCR judge found it was "logical" and "reasonable trial strategy for
counsel to not give the State's expert additional opportunities to further explain
and elaborate on her opinions" and that "limiting the State's expert witness'[s]
exposure to the judge in favor of later producing three experts who would refute
the State's theory of the case was an acceptable and reasonable way to proceed."
Based on his counsel's trial strategy, the jury convicted defendant of aggravated
manslaughter and not knowing or purposeful murder. See Pierre, 223 N.J. at
578-79 (finding "[a]n attorney is entitled to a 'strong presumption' that he or she
provided reasonably effective assistance, and a 'defendant must overcome the
presumption that' the attorney's decisions followed a sound strategic approach
to the case." (quoting Strickland, 466 U.S. at 689)).
A-0331-22 14 We perceive no error in the PCR judge's conclusion defendant failed to
overcome the presumption of sound strategy under these circumstances. Even
if defendant had overcome that presumption, he did not affirmatively prove by
a preponderance of the evidence that he suffered prejudice under Strickland's
second prong, considering the remaining substantial factual and scientific
evidence presented by the State.
Defendant faults the PCR judge for not specifically addressing his
argument that during the first meeting at the police station, police lied to
defendant about the child's condition. The PCR judge at the end of the opinion
generally referenced defendant's "other vague or suggested arguments" and
rejected them "because they are speculative, not fully presented or explained,
and/or they lack merit." (Emphasis in original). That is a fair characterization
of defendant's argument concerning the police's alleged lie. Defendant does not
argue counsel was ineffective by failing to raise the issue at trial and does not
explain how the claim, even if true, would permit or require vacatur of his
conviction. And defendant makes no showing the purported lie about the status
of the child during the first interview supports PCR. Nor does he explain why
consideration of the issue isn't barred because he did not raise it in his direct
appeal. See State v. Afandor, 151 N.J. 41, 50 (1977) (finding Rule 3:22-4
A-0331-22 15 "essentially bars all grounds for PCR that could have been raised in a prior
proceeding," unless one of three enumerated exceptions to the rule apply).
We discern no abuse of discretion in the PCR judge's decision to forego
an evidentiary hearing. A petitioner is not automatically entitled to an
evidentiary hearing. Porter, 216 N.J. at 355; see also State v. Vanness, 474 N.J.
Super. 609, 623 (App. Div. 2023) (holding "[t]he mere raising of a claim for
PCR does not entitle the defendant to an evidentiary hearing").
Rule 3:22-10(b) provides that a court should hold an evidentiary hearing
on a PCR petition only if the defendant establishes a prima facie case in support
of PCR, "there are material issues of disputed fact that cannot be resolved by
reference to the existing record," and "an evidentiary hearing is necessary to
resolve the claims for relief." See also Porter, 216 N.J. at 354; Vanness, 474
N.J. Super. at 623. "A prima facie case is established when a defendant
demonstrates 'a reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will ultimately succeed on
the merits.'" Porter, 216 N.J. at 355 (quoting R. 3:22-10(b)). Defendant did not
meet that standard, and, thus, the PCR judge did not abuse his discretion by
deciding the petition without holding an evidentiary hearing.
Affirmed.
A-0331-22 16