On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved For Publication July 5, 1996.
Before Judges Pressler, Keefe and Wefing. The opinion of the court was delivered by Pressler, P.j.a.d.
The opinion of the court was delivered by: Pressler
The opinion of the court was delivered by PRESSLER, P.J.A.D.
Following a trial by jury, defendant David Titus Hyde was convicted of the related charges of third-degree burglary, N.J.S.A. 2C:18-2; fourth-degree unlawful possession of a weapon, a baseball bat, N.J.S.A. 2C:39-5d; second-degree possession of that weapon for the purpose of using it unlawfully, N.J.S.A. 2C:39-4d; third-degree aggravated assault with a deadly weapon, the baseball bat, N.J.S.A. 2C:12-1b(2); fourth-degree unlawful possession of a weapon, a hunting knife, N.J.S.A. 2C:39-5d; second-degree possession of that weapon for the purpose of using it unlawfully, N.J.S.A. 2C:39-4d; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); and first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3. For sentencing purposes, the Judge merged the second-degree aggravated assault conviction into the attempted murder conviction, and on that conviction sentenced defendant to a twelve-year term. Defendant was also sentenced to a consecutive four-year term on the conviction of second-degree possession of the baseball bat and a concurrent four-year term on the burglary conviction. All other convictions were merged.
On challenging the judgment of conviction, defendant, by counsel, raises the following issues:
I. THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL.
II. THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A MISTRIAL AND BY PRECLUDING THE DEFENDANT'S THERAPIST FROM TESTIFYING ABOUT HIS STATE OF MIND FOLLOWING THE INCIDENT OF MARCH 8, 1992.
III. THE SUMMATION OF THE PROSECUTOR WAS INFLAMMATORY AND EXCEEDED THE BOUNDS OF PROPER ADVOCACY, THUS DENYING THE DEFENDANT A FAIR TRIAL. (Not Raised Below)
IV. THE INSTRUCTION TO THE JURY, IN ITS ENTIRETY, WAS CONFUSING, MISLEADING AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Partially Raised Below)
V. THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.
In his pro se supplemental brief, defendant raises the following issues:
I. DEFENDANT WAS ENTITLED TO JURY INSTRUCTIONS ON AGGRAVATED ASSAULT AS THE LESSER CHARGE OF ATTEMPTED MURDER.
II. IT WAS FUNDAMENTALLY UNFAIR AND A TRANSGRESSION OF DUE PROCESS WHEN THE PROSECUTOR REFERRED TO DEFENDANT'S POST-ARREST, POST-MIRANDA ...