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State v. Kyles

Decided: January 29, 1975.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN KYLES, DEFENDANT-APPELLANT



Matthews, Fritz and Botter.

Per Curiam

[132 NJSuper Page 398] Defendant was indicted for the commission of an atrocious assault and battery upon Estelle Monk and

for the commission of the same offense upon her daughter, Anna L. Brown. A jury acquitted defendant of the charge with respect to Mrs. Monk but convicted him of committing this offense against Anna. An indeterminate sentence to "Yardville" was imposed, and this appeal followed.

Defendant asserts as grounds for reversal that (a) the trial judge erred in refusing to grant a continuance when defense witnesses under subpoena failed to appear; (b) the charge as to flight from the scene of a crime should not have been given, and (c) the verdict was against the weight of the evidence.

On May 7, 1973 Mrs. Monk resided in an apartment in Asbury Park with three of her children. Also residing there, temporarily, were defendant's sister Elizabeth, her husband Robert Livingston, and their two children. Defendant and two of his younger brothers also were in the apartment that night, some time after midnight, according to the police.

There was evidence in the case to show that defendant, Mrs. Monk and defendant's sister were involved in an argument. The police were called and they broke up the quarrel. Defendant had been observed pushing Mrs. Monk and was restrained. Mrs. Monk left the apartment with the police, but returned later with her 16-year-old daughter Anna. It was then that Anna was struck on the head by a pipe. There was sufficient credible evidence for the jury to find that defendant was the assailant. Anna suffered cuts on her head requiring 14 stitches and was hospitalized for four days. There was also evidence that defendant fled after striking her.

This abbreviated recitation of the evidence will serve to dispose of two points urged by defendant -- that the verdict was against the weight of the evidence and that the trial judge should not have charged the jury as to the inference to be drawn from the flight of an accused from the scene of a crime. Although there was a conflict in the evidence as to the assault on Anna and defendant's flight, there was sufficient

credible evidence as to both to justify the charge on flight and to support the guilty verdict.

At this juncture we pause to note serious improprieties in defendant's brief. No exception was taken by defense counsel to the court's charge on flight (although its inclusion was specifically mentioned at side bar during the discussion of possible exceptions), but defendant's brief fails to mention, as required by R. 2:6-2(a), that this point was not presented below. The requirement of this rule is, by its very language, "mandatory." The consequence of the failure to object below is provided by R. 1:7-2. Subject to the exception for "plain error," R. 1:7-2 provides that "no party may urge as error any portion of the charge to the jury or omissions therefrom unless he objects thereto before the jury retires * * *." State v. Hock, 54 N.J. 526, 538 (1969), cert. den. 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

Despite the failure to comply with this procedural requirement we have considered the merits and find that the trial judge's charge on the issue of flight was correct and relevant in this case. Defendant's brief argues that the charge on flight was inappropriate since the evidence that defendant fled after striking Mrs. Monk was disproved by the testimony that he was still in the apartment when the police arrived. However, the brief fails to mention the credible evidence of defendant's flight after Anna Brown was struck down. Thus, the brief ignores entirely the significant proofs to which the charge on flight would apply. State v. Sullivan, 43 N.J. 209, 238-239 (1964), cert. den. 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966).

While an attorney should zealously advance the cause of his client, the piecemeal selection so as to create a putative issue is to be condemned. It is improper for an attorney to present an issue unless it can be done in good faith. DR. 7-102(A)(2). Simply because an indigent ...


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