On appeal from Superior Court of New Jersey, Law Division, Cape May County, 05-08-0483-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 11, 2008
Before Judges A. A. Rodríguez and Collester.
Tried to a jury, defendant was found guilty of third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(5), by knowingly or recklessly causing bodily injury to a law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority. Because defendant was an inmate at the time of the offense, Judge Carmen H. Alvarez imposed a mandatory five-year prison term to run consecutive to defendant's 1974 sentence of life imprisonment for two murder convictions.
Defendant appeals alleging the following grounds:
POINT I -- THE COURT ERRED IN FAILING TO PROPERLY CHARGE THE JURY AS TO THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT. (Not Raised Below.)
POINT II -- STATEMENTS MADE BY THE PROSECUTOR DURING OPENING AND CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM.
POINT III -- THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL IN ADMITTING INFLAMMATORY PHOTOGRAPHS INTO EVIDENCE.
POINT IV -- THE COURT FAILED TO INSTRUCT THE JURY ON HOW "IMPERFECT SELF-DEFENSE" COULD IMPACT THE STATE OF MIND ELEMENT IN AGGRAVATED ASSAULT AND THUS, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below.)
POINT V -- NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
POINT VI -- THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
On July 14, 2005, at approximately 4 p.m., defendant was brought to the Cape May County Jail and was to be processed in accordance the regulations of the sheriff's office, which included a strip search and search of the inmate's body and body cavities. Officer Bowman asked defendant to remove his clothing, including his undershirt and boxer shorts. When Bowman instructed the defendant to turn around, bend over, spread his cheeks, and cough, in accordance with the standard procedure, the defendant replied, "I'm not playing this fucking game." Bowman told defendant that he had to comply, but defendant again refused and became more hostile. A general call for assistance was made, and six correction officers arrived to assist Bowman. Correction Officer Campbell entered the room and repeated the instruction again, but defendant stated, "I'm not doing it," while flailing his arms in what was described as a threatening manner. The decision was then made by the officers to remove defendant from the strip search room. He was handcuffed and marched naked down a main corridor of approximately 100-200 yards passing correction officers to the detention area.
When the officers and defendant arrived at the detention cells, defendant's handcuffs were removed, and he was instructed to enter one of the cells. However, after entering the cell, defendant used his arm to prevent the gate from being closed and pushed it open. He held a closed fist in the air and said, "Fuck that. I feel like fighting." He stepped forward toward the officers and began throwing punches at them. During the struggle, defendant placed his fingers into Officer McCorriston's mouth and pulled it. He also scratched McCorriston's face and neck, causing bleeding. Defendant continued resisting until a request for assistance brought additional officers to the scene. Finally, the officers placed handcuffs and shackles on the defendant and put him in the cell. Officer McCorriston was then treated by a nurse at ...