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

NOT FOR PUBLICATION WITHOUT THE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.
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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 Although citing an unpublished opinion is generally forbidden, we do so here 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 Roberts2 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). 
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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 ineffective 

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. 
10 A-2888-16T4

. . . .

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 selfabusive 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 
11 A-2888-16T4

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. 
12 A-2888-16T4

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 
13 A-2888-16T4

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).
14 A-2888-16T4

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 
15 A-2888-16T4

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 
16 A-2888-16T4

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 
17 A-2888-16T4

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). 
18 A-2888-16T4

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.