On appeal from the Superior Court, Law Division, Union County.
Michels, Gaulkin and Stern. The opinion of the court was delivered by Stern, J.s.c., (temporarily assigned).
[208 NJSuper Page 482] Following trial by jury defendant was convicted of second degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count one); third degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(2) (count two); possession of a weapon, specifically a billy or nightstick, with a purpose to use it unlawfully against the person of another, contrary to N.J.S.A. 2C:39-4d (count three), and possession of the same weapon without any explainable lawful purpose, contrary to N.J.S.A. 2C:39-3e (count four). The court merged counts two, three and four into count one and sentenced defendant to the custody of the
Commissioner of Corrections for five years with one-fourth of that time to be served before parole eligibility. The court also imposed a $500 penalty for the benefit of the Violent Crimes Compensation Board.
Defendant appeals and argues:
POINT I THE COURT'S EXCESSIVE INTERVENTION DEPRIVED DEFENDANT OF A FAIR TRIAL. (Partially Raised Below)
A. The Court's Conduct Toward Defense Counsel Created Such An Air of Disdain For Defendant's Case, It Deprived Defendant of Effective Assistance of Counsel And Denied Him A Fair Trial.
B. The Court's Repeated Interference With Defense Counsel's Cross-Examination Of The State's Witnesses Frustrated The Development Of Defendant's Case, Depriving Him Of A Fair Trial.
C. The Trial Judge's Questioning Of The State's Witnesses After The Completion Of Their Testimony Was Prejudicial To Defendant Since It Stressed Testimony Adverse To Defendant And Usurped The Prosecutional [sic] Function By Rehabilitating Witnesses. (Partially Raised Below).
POINT II THE COURT'S INSTRUCTIONS REGARDING THE JUSTIFICATION OF DEFENSE OF A THIRD PARTY ON BURDEN OF PROOF AND PROVOCATION, AND ITS FAILURE TO CHARGE MISTAKE OF FACT, ALONG WITH ITS INCORRECT CHARGE ON SERIOUS BODILY INJURY WERE SO ERRONEOUS AND MISLEADING THAT JOHN HOLMES WAS DENIED A FAIR TRIAL. (Partially Raised Below).
A. The Burden of Proof On Defense Of Another Was Impermissibly Shifted To Defendant. (Plain Error).
B. The Court's Charge That The Defense of Another Was Unavailable To Defendant If Either He Or His Brother Provoked The Attack Was Erroneous. (Raised Below).
C. The Trial Court Should Have Charged The Jury On The Mistake Of Fact Doctrine Instead Of On Provocation. (Plain Error).
D. The Court's Definition Of "Serious Bodily Injury' Was Erroneous And Prejudiced Defendant's Chances For A Fair Trial. (Raised Below).
POINT III THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR A MISTRIAL BASED ON THE STATE'S FAILURE TO SUPPLY DEFENDANT WITH THE EXCULPATORY NEGATIVE IDENTIFICATION.
Various objections are addressed to the charge relating to defense of another. Defendant raised some of the objections immediately following the charge, and we must consider them in that context. See R. 2:10-2. Defendant complains that the instruction improperly advised the jury that the defense was
unavailable if either defendant or his brother provoked the attack. The court, in its instructions, said the following:
Now, the defendant in this case, in addition to his general denial of guilt, contends that his use of force was legally justified for the protection of another person, that is, his brother, Daryl.
Under our criminal law, the use of force to protect another is a defense to certain crimes under certain circumstances. Basically, the use of protective force is justified when a defendant reasonably believes that such force is immediately necessary for the purpose of protecting a third party ...