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SAMPLE BRIEF TO THE SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION The following appellate brief directed to the Superior Court of New Jersey, Appellate Division, was prepared by Appellate Practice Services, LLC, and is provided as a writing sample. This is not intended nor should it be construed or relied upon as being legal advice. We have made every attempt to maintain proper format while converting this brief to .html format for display on the Internet. 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?
Q: That word flurry came from Sergeant Shannon, correct?
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
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).
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).
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]
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.
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] 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.
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, ________________________________ Dated: |
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