SAMPLE CRIMINAL LAW APPELLATE BRIEF

PROCEDURAL HISTORY

An indictment was obtained against Defendant Anthony XXXXX on March 6, 2003, for first degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4A. [Da3]

A criminal complaint was filed against defendant on March 12, 2003, officially charging him with same. [Da1]

The case was tried before a jury on April 20, 21, 26, 27 and 28, 2005.

A judgment of conviction was entered on April 28, 2005, finding defendant guilty of reckless manslaughter, contrary to N.J.S.A. 2C:11-4b(1).

Plaintiff made a motion for an extended term on May 13, 2005. [Da5] The court granted that motion. [Da4]

Defendant was ultimately sentenced on June 8, 2005, to a term of twelve years (12) confinement with an 85% parole disqualifier pursuant to the No Early Release Act and three years of parole supervision. Defendant was also fined $1,000.00 VCCB, $75.00 SNSF and $30.00 LEOP. [Da4]

Defendant filed a timely Notice of Appeal on July 20, 2005. [Da35]

STATEMENT OF FACTS

This case concerns a death resulting from a bar fight. All material witnesses testified that she saw a violent scuffle between at least four people over a pool cue. One witness said he saw the entire altercation and that defendant only hit the decedent once. Two other witnesses say he hit the witness multiple times. An expert witness testified that the autopsy revealed that the shape and extent of the injury to the decedent's head could have been caused by a punch, kick or strike from a pool cue that was being violently wrestled over by the parties.

Dina XXXXX was the bartender on duty during the incident in question [2T-149:13-16; 2T-153:15-25] John XXXXX, Jack XXXXX, Karen XXXXX, Kraig XXXXX, John XXXXX and Anthony XXXXX were already there when she arrived at the beginning of her shift at 6:00 p.m. [2T-154:1 to 155:2]

Ms. XXXXX testified that at approximately 6:15 p.m. she heard "scuffling" at the "far end of the bar". [2T-156:14-19] She heard "voices almost like argument and people rustling around". When she turned around she saw that the altercation was between John XXXXX, Anthony XXXXX, John XXXXX, Jack XXXXX, Karen XXXXX and Kraig XXXXX. [2T-158:7-25] She observed them wresting over a pool cue. She seen Anthony XXXXX preparing to or otherwise in the process of punching John XXXXX, and she said, "You can't hit him", because she knew that John XXXXX had just had a brain tumor removed and that he could die if he was struck. [2T-159:4-21; 2T-179:11-14; 2T-184:20-23] She testified on cross-examination, however, that it was actually after she saw John XXXXX get struck that she said, "You can't hit him". [2T-177:9 to 178:22]

Q: … So, you said you can't hit him after you saw Anthony strike John, correct?

A: Yes.

[2T-178:15-17]

Ms. XXXXX saw Anthony XXXXX strike John XXXXX with a "flurry" of punches. She was about four feet away at the time. [2T-160:7-18; 2T-162:16-24; 2T-165:24 to 166:4] She ran at that time to get the owner, Bill XXXXX. [2T-159:23 to 160:6; 2T-160:19 to 161:3; 2T-164:1-5; 2T-190:18-22] She did not see John XXXXX strike anyone that evening or anyone besides Anthony XXXXX strike him. [2T-163:12-25; 2T-165:20-23] She testified on cross-examination, however, that she made a statement to the police directly after the incident to the effect that she could not tell if she saw Anthony XXXXX strike John XXXXX more than one time. [2T-176:1 to 177:8;2T-178:2-22; 2T-192:1 to 193:10]

Q: That word flurry came from Sergeant Shannon, correct?

A: Yes.

Q: And before he introduced that word flurry on line eleven you said, I think he got hit just once? Do you see that there on line eleven?

A: Yes.

[2T-177:2-8]

A patron, Michael XXXXX, testified that he was at the bar in the night in question. [3T-7:22 to 8:2] He was 20 to 30 feet away and had consumed four, 10-12 ounce Budweiser draft beers beforehand. [3T-8:12-24; 3T-12:6-11] He heard some scuffling or arguing, turned around and saw Anthony Magnon strike John XXXXX. [3T-12:12-16] He did not see anything other than one punch. [3T-14:3-14]

Karen XXXXX testified that on the night in question she accompanied the decedent, whom she described as a "very good friend", and her little brother, Kraig XXXXX, to Rick and Bill's to shoot a game of pool and have a drink. [3T-35:4 to 36:9] Her brother and the decedent had a beer, she had a white Russian and they played pool. She saw the decedent enter the bathroom and the defendant follow after him. She saw her brother come out of the bathroom, defendant coming from the bathroom behind him, and the two engaged one another. She testified that she was struck while trying to wrestle a pool cue from the two and that she attempted to administer C.P.R., which she is certified in, to the decedent to sustain his life. [3T-36:18 to 38:12]

Ms. XXXXX's testimony is full of inconsistencies. She provided a sworn statement to the police immediately after the incident to the effect that she got up after she fell to the floor and walked over to John XXXXX [3T- 59:19 to 60:22], whereas at trial she testified that she had to crawl on her hands and knees to him to perform C.P.R. [3T-37:21 to 38:12] William XXXXX, the part owner of the tavern in question, observed her "race" to John XXXXX to administer him C.P.R. He did not see her crawl, he saw her "race". [3T-150:24 to 151:5] She testified at trial that defendant stood kicking the decedent while he was on the ground, but her statement to the police was that she only saw defendant punch him. [3T-66:16 to 67:19; 3T-68:14 to 69:1] She insisted that her memory of the events at trial was clearer than it was only hours after the incident when her statement was made to the police. [3T-67:17 to 68:3]

Kraig XXXXX testified that he went to the bathroom along with John XXXXX. Mr. XXXXX admitted asking Anthony XXXXX in the bathroom if the cap he was wearing was a hat traditionally worn by Islamic males. Defendant responded that it was not. Mr. XXXXX admitted taunting defendant even further by responding "kind of looks like a Muslim hat". Defendant left the bathroom in an angry state. [3T-97:11 to 98:10] Mr. XXXXX had consumed about five beers. [3T-118:15 to 119:1]

When Mr. XXXXX exited the bathroom, he was approached by John XXXXX who said, "How about I kick you ass?" Mr. XXXXX was in the middle of a game of pool and had the cue stick in his hand. Mr. XXXXX responded, "I don't think so." At that time John XXXXX grabbed a hold of the pool cue and a struggle for it ensured between the two of them, plus Ms. XXXXX who had joined in. Ms. XXXXX succeeded at getting the pool stick from them, but when it was let go, John XXXXX allegedly punched Mr. XXXXX in the throat which caused him to fall to the floor. [3T-98:24 to 101:15] Mr. XXXXX did not know where John XXXXX was during the altercation. [3T-101:16-18] He did not see John XXXXX be assaulted. [3T-103:5-7] He assisted his sister with performing C.P.R. upon the decedent. [3T-106:16 to 107:3]

Ms. XXXXX and Karen XXXXX testified that they saw Bill XXXXX run out of his office and attempt to break up the altercation and ended-up being part of the scuffle. [2T-164:10 to 165:9; 3T-75:8-21] Ms. XXXXX then called the police and an ambulance. [2T-164:21 to 165:16] Immediately after the altercation, Anthony XXXXX went to the bar and asked Ms. XXXXX for a beer and he was laughing. She responded, "Are you kidding me?" [2T-167:2-15] Anthony XXXXX never attempted to leave the bar or flee the scene. [2T-199:15-22]

Mr. XXXXX testified that when he ran out into the bar area, he saw a fight ensuing between John XXXXX (holding a chair), Kraig XXXXX (wielding a pool cue), Karen XXXXX and Anthony XXXXX. They were all throwing fists. [3T-147:18 to 148:8; 3T-152:25 to 153:2] Mr. XXXXX did not see the decedent involved in that altercation, whom he was well acquainted with. [3T-148:9-15] Mr. XXXXX seen John XXXXX, Karen XXXXX, Anthony XXXXX and Kraig XXXXX all throwing punches at one another. [3T-149:14 to 150:16; 3T-154:9-20]

Dr. Frederick J. XXXXX is employed by the Middlesex County Medical Examiner's Office in the capacity of assistant medical examiner. [2T-65:8-11] He is a medical doctor licensed to practice in the State of New Jersey. [2T-65:12-16] No objection was raised as to his qualifications. [2T-73:1-6]

Dr. XXXXX performed an autopsy on the decedent on March 7, 2003. [2T-73:11-15] He opinioned that the decedent had suffered pre-mortem abrasion and bruise to the right cheek, a laceration on the lower right forehead just above the right eyebrow, two abrasions on the scalp, a "superficial faint abrasion" on the left cheek, bruises on his upper-mid back and upper left back, . [2T-76:25 to 77:3; 2T-78:3 to 80:23; 2T-85:1 to 86:2]

Dr. XXXXX testified that he had also reviewed the decedent's medical charts. The charts revealed that the decedent had previously had a colloid cyst removed surgically excised from his brain that was interfering with the flow of cerebrospinal fluid through the ventricles of his brain. A so-called "shunt" was inserted into his brain to facilitate the flow of cerebrospinal fluid through decedent's brain should another obstruction occur. [2T-81:1 to 83:21; 2T-88:5-18]

Dr. XXXXX testified that he also examined the decedent for "defensive wounds", i.e. wounds sustained by the decedent while defending himself, such as holding his arms up to block a punch. There were none. [2T-88:19 to 90:11]

Dr. XXXXX opinioned that the decedent died due to a blunt trauma injury to the head. [2T-92:14-18; 2T-95:23 to 96:7; 2T-98:11-16] His opinion was that the decedent died at approximately 6:15 p.m., which was three minutes before the 911 call was made and approximately six minutes before the medics arrived. [2T-96:8 to 97:24] Decedent's blood alcohol level was .185 when he died, which was less than half of the .4 blood alcohol level to cause death acute ethanol intoxication. [2T-100:3 to 102:5] The decedent would have died even if he was not intoxicated at the time. [2T-101:19 to 102:5] Dr. XXXXX admitted on cross-examination that the fatal blow may have been caused by a blow from a pool cue or a stomp from the heel of a foot, based upon the shape of the damaged tissue. [3T-121:21 to 122:2]

Sgt. Frank Tortoriello of the Edison Police Department on the evening in question to Rick and Bill's Tavern (he was a patrolman at the time). [2T-37:2-17] He entered the bar at approximately 6:21 p.m. [2T-43:24 to 44:3; 2T-45:17-19] When he walked into the bar, "everybody was screaming" and "an individual [was] laying in between the bar and the front wall". [2T-38:17 to 39:5] The individual lying on the floor was later identified as John XXXXX. [2T-40:1-6] He interviewed the persons present, took sworn statements and arrested the suspect, Defendant Anthony XXXXX. [2T-40:23 to 41:1]

STANDARD OF REVIEW

A. Court's Questioning of Witnesses.

Abuse of discretion is the standard of review on appeal regarding arguments that the trial judge improperly or excessively questioned the witnesses and participated in the trial. State v. R.D., 169 N.J. 551, 561 (2001); State v. Hunt, 115 N.J. 330, 360 (1989).

B. Jury Charges.

The standard of review on an appeal concerning a jury charge where an objection was timely made is whether the failure to properly charge constitutes harmless error. State v. Josephs, 174 N.J. 44, 94-95 (2002). "[E]rroneous jury instructions on matters material to a jury's deliberations are ordinarily 'presumed' to be reversible error … Such errors are poor candidates for rehabilitation as harmless." State v. Cook, 300 N.J. Super. 476, 489 (App. Div. 1996).

"When examining the jury charge for reversible error, our scope of review is limited to whether the charge was clearly capable of producing an unjust result … We must consider the charge as a whole to determine whether it adequately conveyed the law and did not mislead or confuse the jury … A conviction will not be reversed when the reviewing court determines beyond a reasonable doubt that the jury would have found the defendant guilty absent an erroneous instruction." State v. Ashley, 2006 WL 1735951, *6 (App. Div. 2006).

C. No Early Release Act.

As to the excessiveness argument raised in light of the sentence imposed under the No Early Release Act, "'The role of appellate courts in reviewing sentences is to determine: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.'" State v. Robinson, 2005 WL 2648896, *9 (App. Div. 2005), quoting State v. Megargel, 143 N.J. 484, 493 (1996), citing State v. Roth, 95 N.J. 334, 363-65 (1984).

LEGAL ARGUMENT

I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST TO CHARGE THE JURY ON SIMPLE ASSUALT AS A LESSER INCLUDED OFFENSE

Defendant's counsel requested the court to charge the jury on simple assault as being a lesser-included offense. [4T-137:14-17] Defendant's counsel supported this argument by pointing to the fact that a disinterested witness, Michael XXXXX, testified that he saw the entire altercation and saw the defendant hit the decedent only once. The only evidence that defendant hit decedent more than once was the testimony of Dina XXXXX. [3T-14:3-14; 4T-143:15 to 145:5]

The court may recall from the Statement of Facts section of this brief that Ms. XXXXX was the bartender on duty during the incident who testified that she saw Anthony XXXXX strike John XXXXX with a "flurry" of punches. She was about four feet away at the time. [2T-160:7-18; 2T-162:16-24; 2T-165:24 to 166:4] She admitted on cross-examination, however, that she made a statement to the police directly after the incident to the effect that she could not tell if she saw Anthony XXXXX strike John XXXXX more than one time. [2T-176:1 to 177:8;2T-178:2-22; 2T-192:1 to 193:10]

Q: That word flurry came from Sergeant Shannon, correct?

A: Yes.

Q: And before he introduced that word flurry on line eleven you said, I think he got hit just once? Do you see that there on line eleven?

A: Yes.

[2T-177:2-8]

This makes the issue of whether defendant struck the decedent more than once, or whether he struck the fatal blow, an issue of credibility for the jury to decide. A jury could find that defendant struck the decedent multiple times and was guilty of aggravated manslaughter, or that the defendant struck him once, the decedent was struck multiple times during the intense scuffle for control of the pool cue and that the defendant is guilty of only simple assault.

The judge refused to instruct on simple assault, however, because there was a death. [4T-145:6 to 150:8; 4T:152:17 to 153:7] The trial judge concluded, "… I considered Mr. Bergamotto's request that simple assault be added as a lesser included offense, and I'm denying that on the grounds that there's a death involved in this case and that the jury has four … different options." [4T-152:19-23]

Simple assault is a lesser-included offence of aggravated manslaughter. As stated above, a jury could have convicted the defendant on either charge and it constitutes reversible error for the court to not have provided appropriate charges over defendant's counsel's objection.

Pursuant to N.J.S.A. 2C:1-8e, a court "shall not charge the jury with respect to an included offense unless there is a rational basis" to convict a defendant of a lesser included offense. In order to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense … As defined by N.J.S.A. 2C:1-8d, an offense is "included" if:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise include therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

In assessing whether to charge the jury on a lesser included offense, our case law applies a different standard based on whether or not a charge was requested by a defendant at trial. An unrequested charge on a lesser included offense must be given only where the facts in evidence "clearly indicate" the appropriateness of that charge …

In contrast, when a defendant requests a lesser included offense to be charged, we have recognized that a strict adherence to the definition of "included" under N.J.S.A. 2C:1-8d "is less important than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser … Accordingly, when a lesser offense is requested by a defendant, as in this case, the trial court is obligated, in view of defendant's interest, to examine the record thoroughly to determine if the rational-basis standard has been satisfied. The question is not whether the jury is likely to accept the defendant's theory, but whether it would have a rational basis on which to do so. The failure to instruct the jury on a lesser included offense that a defendant has requested and for which the evidence provides a rational basis warrants reversal of a defendant's conviction.

State v. Savage,
172 N.J. 374, 396-98 (2002)
(citations and inner quotation marks omitted).

In Savage, the defendant was convicted of, inter alia, murder and felony murder. The opinion notes that the jury was charged regarding the elements of the offenses "including the lesser included offense[] of … simple assault. Id. at 390. The conviction in that case was reversed and a retrial was ordered for improper jury instructions over defendant's objection. Id. at 490. Our Supreme Court Hence, although dicta, this case support's defendant's position on appeal that simple assault is still a lesser included offense even if the subject dies, so long as a jury could make a rational finding as such.

The jury in the case at bar could have made a rational finding of fact that the defendant struck the decedent multiple times and that he struck the fatal blow, or the jury could have rationally found that defendant only struck defendant once as testified to by Michael XXXXX.

II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL BASED UPON THE TRIAL JUDGE'S QUESTIONING OF THE STATE'S MEDICAL EXAMINER OVER DEFENDANT'S COUNSEL'S OBJECTION THAT INADVERTENTLY "OPENED THE DOOR" TO NEW AREAS OF QUESTIONING

Dr. Frederick J. XXXXX testified on behalf of the state on April 20, 2005 in the capacity of Middlesex County Assistant Medical Examiner. [2T-65:8-11] Defense counsel sought to call him as a witness again on April 26th, which was the second day of trial after April 20th, for the sole reason of clarifying a date that Dr. XXXXX had met with the assistant prosecutor about the case. The prosecution did not wish to enter into stipulations concerning the date. [4T-6:12 7:1] That was the only reason that Dr. XXXXX was being re-called to the stand. "That is the only question", defense counsel stated to the court. [4T-8:20 to 9:10]

Dr. XXXXX was called to testify again. [4T-104:2-5] Defense counsel limited the questioning to the issue of the date of the meeting. A total of six questions were asked by defense counsel. [4T-104:13 to 105:12] The prosecutor limited cross-examination to the issue of the date of the meeting, which was the only issue raised on direct. The prosecution asked a total of three questions. [4T-105:13 to 106:1]

Immediately after the prosecution completed cross-examination, the judge called a side-bar where it was suggested that Dr. XXXXX clarify for the jury whether the decedent's "prior surgery would have … made him more susceptible to succumbing than not." [4T-106:2-18] Both the prosecution and the defense agreed that such questioning was not necessary. [4T-106:19 to 107:21] The court insisted that such questioning was necessary. [4T-107:22-23] The state consented at that point, but defense counsel explicitly objected. [4T-107:24 to 108:11] "If you need to do it it is over my objection." [4T-108:10-11]

The court then began to question Dr. XXXXX. [4T-109:3 to 110:17] This resulted in a total of 14 transcript pages worth of testimony [4T-109:3 to 123:1] as well as 5 transcript pages of argument by defense counsel for a mistrial. [4T-123:4 to 128:23] This included an explanation by Dr. XXXXX that went on for 3 transcript pages straight. [4T-117:4 to 120:15] Dr. XXXXX also made a motion with his hand during this testimony that resembled a punch, implying that the injury in question was caused by a punch rather than by a blow from a pool cue [4T-123:20 to 126:21], whereas the previous testimony was that the injury could have been caused by either. [3T-121:21 to 122:2] Defense counsel requested a mistrial or at least an immediate curative instruction. [4T-123:10 to 124:5]

The defense made a motion at the conclusion of this testimony for a retrial. [4T-123:10-19] The trial court admitted during argument of that motion that it "opened the door" to issues that were not raised on direct examination. The court said, "I opened the door. She [the assistant prosecutor] didn't. You [defense counsel] didn't open the door." [4T-126:24 to 127:7]
During the motion for a mistrial, the defense argued that Dr. XXXXX was not asked certain questions on direct examination for "tactical reasons". The defense did not want to rehash the prior testimony again for the jury. [4T-]

The court denied the motion for a mistrial and the motion for an immediate curative instruction. [4T-126:12-21]

The trial judge crossed the line in this case between asking a question for clarification, which a judge is permitted to do, and interfering in a criminal case with the way that the defendant chooses to defend himself. Dr. XXXXX explained himself at length during his testimony when the prosecution called him as a witness on April 20th. There was no need for the trial judge to interject himself in the proceedings and create an atmosphere that resulted in a lengthy answer that goes on for three transcript pages straight.

In State v. Riley, 49 N.J. Super. 570 (App. Div.), certif. granted, 27 N.J. 279, aff'd in part, 28 N.J. 188 (1958), appeal dismissed, cert. den., 359 U.S. 313, cert. den., 361 U.S. 879 (1959), it was held that the trial judge crossed the line when he caused facts to be rehashed that were adverse to the defendant. That case resulted in a reversal on appeal and a retrial on a rape charge.

Whatever the case, the persistent questioning of the trial judge was clearly designed to draw out vitally incriminating testimony. By continuing to press the witness with questions having that plain effect, he could not help but convey to the jury that he was concerned with developing incriminating detail and, to that extent, create the impression in the jury's minds that defendants in some way were guilty of the crime charged …

* * * *

More significant than this was what happened when the trial judge questioned W on cross-examination. The purpose of cross-examination is, of course, to expose possible inconsistencies, weaknesses or other aspects of lack of credibility. Although the questions put to the witness by defense counsel on cross-examination called for responsive answers which would have required her to repeat the details of the alleged rape, she abstained from giving those details until the court interrupted the examination and took over the questioning.

Id., 49 N.J. Super. at 578-79.

In the case at bar, just like in Riley, the trial judge took over the questioning over both parties objection [4T-106:19 to 107:21] that "required [the expert] to repeat the details". Id., 49 N.J. Super. at 579. Doing so benefited the state's case, and was purely unnecessary in the opinion of both sides. Defendant's counsel timely objected and timely made a motion for a mistrial and a curative instruction.

III. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM UPON DEFENDANT WITHOUT CONSIDERATION TO THE REAL TIME CONSEQUENCES OF THE SENTENCE

The state made a motion for an extended term. [Da4] The court granted that motion and imposed a sentence of twelve years (12) imprisonment with an eighty-five percent (85%) parole disqualifier in accord with New Jersey's No Early Release Act ("NERA").

The "real time consequences" of the No Early Release Act must be considered by trial judges before imposing sentence. State v. Marinez, 370 N.J. Super. 49, 58 (App. Div. 2004). See also State v. Bernardi, 369 N.J. Super. 445 (App. Div. 2004), certif. granted, 183 N.J. 213, appeal dismissed, 185 N.J. 250 (2005). The court below recognized this requirement. [5T-16:15-18]

In Marinez, the Appellate Division held that an eighteen (18) year sentence with an eighty-five percent parole disqualifier was unduly excessive for a conviction for aggravated sexual assault notwithstanding that there were no mitigating factors. Id. Citing Marinez, the Appellate Division in State v. Gavina, 2006 WL 2193062 (App. Div. 2006), held that ten years with an eighty-five percent disqualifier was too harsh for a conviction for reckless manslaughter. The court held that 7.5 years would be more appropriate, even though one of the charges including hitting a police officer in the head with a pipe. Id. at *13. Both of these two caselaws have circumstances that are much more aggravating than the case at bar, a bar fight with no premeditation or use of a weapon where all of the parties had been drinking.

The Marinez court was also concerned about the hardship on the defendant's family and the fact that two of his children were sick. Id. The court found them to be mitigating factors. Id. Likewise, in the case at bar, the defendant has failing health and it would also be a burden upon his family for him to spend 85% of a twelve-year sentence in prison. The trial court, however, did not believe that defendant's medical condition made him less of a threat to society [5T-16:19-20; 5T-20:22-25]

CONCLUSION

For the foregoing reasons, the court should reverse the judgment of conviction in this case and remand it for a new trial.

Respectfully Submitted,

________________________________
Rachel XXXXX, Esq.
The XXXXX Law Firm
Attorney for Defendant-Appellant

Dated:

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