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State v. McAllister

Decided: June 25, 1986.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AVA MCALLISTER, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Monmouth County.

Brody, Gaynor and Baime, JJ. The opinion of the court was delivered by Brody, J.A.D.

Brody

Defendant, a victim of chronic paranoid schizophrenia, was convicted of six crimes arising out of an episode during which she violently resisted arrest. The trial judge imposed concurrent prison terms aggregating seven years and, because of her illness, transferred her from the Trenton Psychiatric Hospital, where he had confined her in lieu of bail, to the custody of the Commissioner of Human Services to be confined in a public mental institution pursuant to N.J.S.A. 30:4-82.

She contends that her attorney provided ineffective legal assistance by failing to raise the defenses of insanity and diminished capacity, and that the trial judge erred in finding her competent to stand trial. She further contends that the judge committed plain errors in his jury charge and in the manner in which he merged offenses. We reverse and remand for a new trial for a reason not raised in the parties' briefs: the judge committed plain error by not having the jury determine whether defendant was guilty of any offense. Instead, he submitted a list of special interrogatories to the jury and from their answers he molded verdicts of guilty and not guilty.

The State presented the following evidence. Two months after defendant had been discharged from her fifth confinement at Marlboro Psychiatric Hospital, she appeared at the office of an obstetrician who had treated her during her first pregnancy. Defendant was pregnant and wanted to engage him again. She soon left the doctor's office, however, after being told that he was away and would not return for two weeks. A patient in the waiting room then reported to the

doctor's office manager that she had seen defendant take a check that had been on a counter. Police were summoned and they arrived at the building in uniform. The office manager, who had followed defendant out of the building, directed the police to her. They intercepted defendant as she was entering a coffee shop. She was carrying three steak knives in her pocketbook and a double-edged razor blade in her pocket. As the police approached her, defendant brandished one of the knives and threatened the officers. When Officer Daniel Martin knocked the knife from her hand with his nightstick, defendant drew out the razor, inflicted a three-inch cut on his forehead and slashed Officer Patrick Barrett's trouser leg. The officers eventually subdued and arrested her.

The indictment was in fourteen counts that charged (statutory definitions of assault crimes supplied):

1. Second-degree aggravated assault of Daniel Martin.

Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; [ N.J.S.A. 2C:12-1(b)(1)]

2. Third-degree aggravated assault of Daniel Martin.

Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; [ N.J.S.A. 2C:12-1(b)(2)]

3. Fourth-degree aggravated assault of Daniel Martin.

Recklessly causes bodily injury to another with a deadly weapon; [ N.J.S.A. 2C:12-1(b)(3)]

4. Third-degree aggravated assault of Daniel Martin.

Commits a simple assault . . . upon (a) Any law enforcement officer acting in the performance of his duties while in uniform . . . if the victim suffers bodily injury. . . . [ N.J.S.A. 2C:12-1(b)(5)(a)]

5. Second-degree aggravated assault of Patrick Barrett.

Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; [ N.J.S.A. 2C:12-1(b)(1)]

6. Third-degree aggravated assault of Patrick Barrett.

Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; [ N.J.S.A. 2C:12-1(b)(2)]

7. Fourth-degree aggravated assault of Patrick Barrett.

Commits a simple assault . . . upon (a) Any law enforcement officer acting in the performance of his duties while in uniform . . . [if the victim does not suffer bodily injury]. . . . [ N.J.S.A. 2C:12-1(b)(5)(a)]

8. Third-degree terroristic threats (N.J.S.A. 2C:12-3).

9. Fourth-degree resisting arrest (N.J.S.A. 2C:29-2).

10. Third-degree possession of weapon (razor blade) with purpose to use it unlawfully against the person of another (N.J.S.A. 2C:39-4(d)).

11. Fourth-degree unlawful possession of weapon (razor blade) (N.J.S.A. 2C:39-5(d)).

12. Third-degree possession of weapon (knife) with purpose to use it unlawfully against the person of another (N.J.S.A. 2C:39-4(d)).

13. Fourth-degree unlawful possession of weapon (knife defendant was brandishing) (N.J.S.A. 2C:39-5(d)).

14. Fourth-degree unlawful possession of weapons (two knives defendant did not remove from her pocketbook) (N.J.S.A. 2C:39-5(d)).

When the State rested, the trial judge found that there was no evidence to support the charge that defendant had caused Officer Barrett any bodily injury. Accordingly he dismissed counts five and six insofar as they charged defendant with having caused Officer Barrett either serious bodily injury or bodily injury. The judge did not dismiss those counts insofar as they charged defendant with attempting to cause Officer Barrett serious bodily injury or bodily injury.*fn1

The trial judge submitted the following special interrogatories to the jury (the jury's answers are indicated):

1. Did Ms. McAllister purposely prevent the police from effecting a lawful arrest (i.e., resist arrest) by using or threatening to use physical force or violence against them or any one of them?

Answer: Yes.

2. Did Ms. McAllister attempt to cause serious bodily injury to Officer Martin purposely or knowingly?

Answer: Yes.

3. Did Ms. McAllister attempt to cause serious bodily injury to Officer Barrett ...


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