The opinion of the court was delivered by: Jerome B. Simandle United States District Judge
For the reasons stated herein, the Petition must be denied.
The relevant facts are set forth in the opinion of the Superior Court of New Jersey, Appellate Division.*fn1
Defendant Mike Tyson was convicted, following a jury trial, of second degree aggravated assault, N.J.S.A. 2C:12-1b(1). The judge granted the State's motion for extended-term sentencing and imposed a twenty-year term with a ten-year period of parole ineligibility, to be served consecutively to a life term imposed on an unrelated conviction....
Dana Holloway*fn2 and defendant were involved in a long-term relationship, which produced one son and ended about two years before March 23, 2001. On that morning, Calloway was driving in Camden when she saw defendant walking down the street. Calloway was still very angry about an argument that she and defendant had the evening before. She drove past defendant several times, but he ignored her. Finally, Calloway stopped. Defendant came up to her car and the two resumed their argument. Defendant reached into the car and struck Calloway. Calloway thrust her left leg out of the open car window and attempted to kick defendant. He grabbed her leg. Calloway testified that she turned, causing her leg to twist, and drove away.
Calloway drove a few blocks and flagged down Camden police officer Judy Bailey. Calloway reported that defendant had assaulted her. Calloway led Bailey and her partner, Police Officer Craig Wilberry to defendant. He was arrested. Calloway followed in her car to headquarters, but once there she said that she was in too much pain to get out of the car. She was transported by ambulance to a nearby hospital. At the hospital, it was discovered that Calloway had sustained spiral fractures of the left tibia and fibula. Surgery was performed to set the fractures.
At trial, Callaway was reluctant to testify against defendant. She testified only under the compulsion of a subpoena.
In summation, Assistant Prosecutor Brian Gallagher commented:
Counsel very correctly read the diagnosis of Miss Calloway's injury. You saw her. She's [a] fully grown woman, 37 years old. About a year and a-half ago when she was 35 she suffered a very brutal injury inflicted by a very brutal man, Mike Tyson. Very brutal thing. She had a spiral fracture of the two bones in her lower leg, tibia and fibula.
You might have heard something in the press reports about assaults on small children. Child abuse assaults where there's manifestation of spiral fracture. What it means the bones --- limb was twisted until it broke. I submit to you that it's unheard of to hear an assault like that committed on an adult, fully adult. It's manifestation of the brutality of this injury how much force it takes that you have to twist the limb of a fully adult person to get it to break.
There was no objection to these remarks.
Later in his summation, the Assistant Prosecutor said:
There's no reference to [any extraneous cause for Calloway's injuries]. The only reference you'll see is that she told [the treating physicians] what happened. That her leg was twisted until it broke. Tibia and fibula, both bones. I have to keep going back to that. You might have read about spiral fracture before and it refers to young child there has to be some sort of revulsion in you. Someone twists a bone that hard it breaks. Imagine a 34-year-old adult, how hard you have to twist. Leg was twisted. Discharge summary that I first noted was obviously created when she was discharged a couple days later after she underwent two surgeries. There are many other notes made contemporaneous to the treatment by doctors, by nurses, by the surgeon, by the ambulance personnel. There are no other injuries on her body except for twisting of her leg. Twisted until both bones broke.
There was no objection to these comments either.
The final day of trial was Wednesday, December 11, 2002. The judge finished charging the jury after 4:30 p.m. The judge instructed the jurors to first decide whether they wished to deliberate that evening or return the next day. Several minutes later, the jury sent out a note stating, "All will to stay, but one. Can the alternate sub." With the agreement of counsel, the juror who did not wish to deliberate that evening was excused and the alternate was sworn as a deliberating juror. It is undisputed that the judge did not ask the jury to commence its deliberations anew.
State v. Mike Tyson, No. A-4891-02T4 (App. Div. July 13, 2004 ...