June 6, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY MAGDON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-05-646.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2007
Before Judges S.L. Reisner and Seltzer.
Defendant was indicted on charges of aggravated manslaughter, N.J.S.A. 2C:11-4a, as the result of the death of John Campbell following a fight at Rick and Bill's Tavern in Edison Township. After a four-day trial, the judge rejected defendant's request to charge the lesser included offense of simple assault, N.J.S.A. 2C:12-1a(1), and submitted the case for consideration of the original charge of aggravated manslaughter and the lesser included offenses of reckless manslaughter, N.J.S.A. 2C:11-4b(1), and aggravated assault, N.J.S.A. 2C:12-1b(1) and -1b(7). Defendant was acquitted of the original charge but convicted of reckless manslaughter. He appeals both the conviction and the custodial sentence of twelve years subject to the parole restrictions of N.J.S.A. 2C:43-7.2. We reverse and remand for a new trial.
On appeal, defendant asserts
I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S REQUEST TO CHARGE THE JURY ON SIMPLE ASSAULT AS A LESSER INCLUDED OFFENSE.
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.
III. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM UPON DEFENDANT WITHOUT CONSIDERATION TO THE REAL TIME CONSEQUENCES OF THE SENTENCE.
We find the failure to charge simple assault requires that we reverse and remand for a new trial. Accordingly, we do not address defendant's other arguments.
We begin our analysis with a summary of the principles governing defendant's request that the jury be instructed to consider simple assault. A defendant "is entitled to a charge on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993); State v. Purnell, 126 N.J. 518, 531 (1992) (citing State v. Ramseur, 106 N.J. 123, 271 n.62 (1987)). Although "included offenses" are defined by N.J.S.A. 2C:1-8d, when a defendant seeks a charge on a lesser uncharged crime, "strict adherence to the definition of 'included' under N.J.S.A. 2C:1-8d 'is less important than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser.'" State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Brent, 137 N.J. 107, 117 (1994)). "Accordingly, when a lesser offense is requested by a defendant, as in this case, 'the trial court is obligated, in view of defendant's interest, to examine the record thoroughly to determine if the rational-basis standard has been satisfied.'" Ibid. (quoting State v. Crisantos, 102 N.J. 265, 278 (1986)). "The failure to instruct the jury on a lesser included offense that a defendant has requested and for which the evidence provides a rational basis warrants reversal of a defendant's conviction." Id. at 397-98 (citing Brent, supra, 137 N.J. at 118).
The question then becomes "whether any view of the evidence in this case presented a rational basis for the jury to acquit [defendant] of [reckless manslaughter] and, alternatively, to convict him of [simple assault]." Id. at 398. We review the evidence in the light most favorable to the defendant since we are determining whether any rational view of the evidence would support an acquittal of the manslaughter charge and a conviction for simple assault.
The victim died after having been struck during a dispute at Rick and Bill's Tavern on March 6, 2003. Five individuals who were present testified. Dina Manganaro was bartending on March 6th and testified that she saw scuffling and I turned and they were in a row with a pool stick across all of them, and I went . . . [defendant], John Magdon, [the victim], Jack Campbell, Karen [Hennessy] and Kraig [Sorenson] in that --that order, and there was a pool stick across them and they were all like scuffling and pulling and yelling and arguing, and then it just started to get worse . . . and then I saw [defendant's] fists going towards [the victim] . . . .
On direct examination, Manganaro was at first "not sure how many times" defendant struck the victim. She was then asked, "Did Anthony Magdon hit John Campbell more than once?" and responded,
"I would say so, yes." However, she was unable to remember if defendant struck the victim more than twice. The prosecutor sought to refresh her recollection with a statement she had given to the police immediately after the incident:
Q: Does that refresh your memory as to the number of punches or how you described the number of punches back then?
Q: What did you say? Tell the jury?
A: What tell them?
Q: How many punches did you see?
A: A couple, that it was so fast, what seemed to me to be a couple of times.
Q: Did you describe it as being a flurry of punches?
Q: And that is a flurry of punches from Anthony Magdon to John Campbell?
The theme was pursued on cross-examination:
Q: Remember him asking you this question on line seven?
"Question: Okay. How many times did you see John get struck by Anthony, if you can say? If you can say.["]
"Answer: A couple. It was so fast, his hands were going and he was also trying to hold the pool stick which was dropping and that other people were holding that.
Once I could say that I know of. Because if -- yeah, because I think just once." You see that answer?
On further questioning, Manganaro admitted that her use of the word "flurry" was prompted by her interrogator.
Michael Kaplan testified that he was present at the bar and "heard some scuffle -- you know -- some arguing occurring which caught my attention. I looked over and I saw the defendant hit the -- the victim." The observation was made from twenty to thirty feet. Kaplan testified further that
I saw them, they both had their backs to the wall and with the defendant's right hand I saw him punch the victim in the head.
Q: Okay. And did you see anything else after that one punch?
A: No. After that then a melee broke out and the people that were standing to my left stood up and that blocked my view.
Kaplan provided no other information as to the number of punches delivered.
Two other witnesses testified that they did not see defendant strike the victim. Kraig Sorenson identified what was probably the genesis of the dispute but was knocked to the ground and did not see the victim or defendant strike the victim. William Schuck, one of the owners of Rick and Bill's, also testified. He was in the employee's bathroom when he was alerted to the fight by the bartender screaming his name. He ran into the bar, perhaps three seconds away, and saw defendant, "his brother John, a man named Kraig and a female Karen . . . . They were throwing fists. Kraig had a pool stick in his hand. John had a chair and Karen was in the middle of it." He did not see the victim other than lying on the floor after the fighting had abated.
Karen Hennessy, who identified the victim as "a very good friend," provided the testimony most damaging to defendant. She testified that, from the distance of "five feet, maybe even less," she saw defendant "kick and hit [the victim] multiple times." Hennessy described defendant's action as "kicking and beating on his - - his lifeless body. He was just lying there. He was lifeless. There [were] multiple kicks and punches within seconds as I screamed." On cross-examination, however, she conceded that a statement given to the police immediately after the incident did not use the word "kicking."
On this evidence, we believe it evident that a jury could have acquitted defendant of charges of aggravated manslaughter, as well as reckless manslaughter and aggravated assault. Both forms of manslaughter require a death caused "recklessly." "A person acts recklessly with respect to a material element of an offense" -- in this case, the death of another -- "when he consciously disregards a substantial and unjustifiable risk that the material element . . . will result from his conduct."
N.J.S.A. 2C:2-2b(3). Both forms of aggravated assault require either purposeful or knowing action. "Purposeful" culpability requires an "conscious object to . . . cause [the] result," N.J.S.A. 2C:2-2b(1), of either "serious bodily injury," N.J.S.A. 2C:12-1b(1) or "significant bodily injury . . . under circumstances manifesting extreme indifference to the value of human life." N.J.S.A. 2C:12-2b(7). "Knowing" culpability requires an awareness that such injury is "practically certain" to result from the actor's conduct. N.J.S.A. 2C:2-2b(2).
A reasonable jury might have believed that, even without regard to the number of times defendant struck the victim, there was no significant risk of death that was consciously disregarded and that defendant had neither the conscious object to inflict serious or significant bodily injury or the awareness that such injury would ensue. An acquittal on the more serious charge would be supported if the jury concluded that defendant struck the victim only once or twice, although such a conclusion would not be necessary for an acquittal. The only definite evidence before the jury concerning more than one punch came from Hennessey, whose statement at trial could be seen as colored by her friendship with the victim and at variance from her statement given immediately after the event. The failure of any other witness to identify with certainty more than one punch would allow a jury to conclude that the State had failed to meet its burden of proof. Given the description of the melee, the blow resulting in death might have been delivered by others or inadvertently when the victim fell to the floor.
Similarly, we find the evidence sufficient to support a verdict that defendant had committed a simple assault on the victim. Such an assault is defined by N.J.S.A. 2C:12-1a(1). "A person is guilty of a [simple] assault if he: (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]" When refusing to charge simple assault, the judge focused on the injury actually inflicted and held that death is more severe than simple bodily injury. He said:
We're talking about bodily injury and of course bodily injury means basically -- you know -- something like can be any kind --any kind of pain, any kind -- that is such a low standard and here we have -- you know -- a death. . . . I would agree with you [if] we didn't have a death. . . . But here we have the -- the victim has died . . . .
He ultimately ruled that "I'm not going to charge simple assault which is a disorderly persons offense in a case involving a death."
We believe the judge focused on the portion of the assault definition relating to the injury caused rather than on the definitional concept of an attempt to cause such injury. The attempt with which we are concerned is defined by N.J.S.A. 2C:5-1a(1):
A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be[.] This subsection is intended to cover those situations "where the criminal act is complete but for attendant circumstances which did not coincide with the actor's reasonable belief[.]" John M. Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:5-1 (2007). The mental state accompanying an intent must be "purposive" because one cannot attempt to do that which it is not his conscious object to achieve. State v. Robinson, 136 N.J. 476, 484-85 (1994). "It is clear then that the purposive conduct requirement for all attempts requires an exploration of the actor's intent, not merely the possible consequences of his action." Cannel, supra, comment 3 on N.J.S.A. 2C:5-1.
In short, if defendant intended to inflict only bodily injury, had no reason to believe his action would result in more serious injury, and, in fact, reasonably believed his action would result in only limited injury, he would have attempted a simple assault, and hence would be guilty of simple assault even though he inadvertently caused greater damage. Although this precise issue seems not to have been previously raised, we think our resolution of the issue is compelled by the language of the relevant statutes.*fn1
A similar result was reached in a closely related factual pattern in State ex rel. S.B., 333 N.J. Super. 236 (App. Div. 2000). In that case, a student, intending to strike a fellow student, actually struck a teacher. Id. at 239-40. Because the student did not intend to assault the teacher, we held that he could not be convicted of the form of aggravated assault resulting from the infliction of minor injury to a teacher, N.J.S.A. 2C:12-1b(5)(d). Id. at 242. He would, however, be guilty of a simple assault. Id. at 242-43. We see no difference between the consequence of striking a member of a protected class when the intent was to strike a non-member of that class and the consequence of causing greater damage when only lesser damage was intended. The question of whether a reasonable person would expect, under the circumstances, that a protected person would not be struck or greater damage would not be inflicted, remains a jury question.
In fact, the State does not dispute that an instruction as to simple assault would be required if the evidence would rationally support a conviction of the charge; it argues only that the evidence produced at trial would not permit such a conviction. We disagree.
For the same reasons that a jury might acquit on the more serious charges, they could conclude that defendant struck the victim only once or twice under circumstances that no reasonable person would expect to result in serious injury or death. That action would not constitute a completed assault because the injury inflicted exceeds that of an assault, but it would constitute an attempt to commit a simple assault. The requested charge was, therefore, appropriate.
The failure to charge simple assault was not harmless. The jury rejected the theory that defendant acted under circumstances manifesting disregard for human life when it acquitted him of aggravated manslaughter. Although the jury determined that defendant acted with a conscious disregard for the likelihood that death would occur, they were not given the opportunity to choose between that culpable mental state and the intention to cause only bodily injury. In the absence of that instruction, they were deprived of the road map necessary for a considered opinion. See State v. Koskovich, 168 N.J. 448, 507-08 (2001).
Reversed and remanded.