On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-12-1637.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 7, 2011 - Decided Before Judges Lisa and Reisner.
Defendant, Marcus T. Graham, was charged with knowing or purposeful murder. His first trial ended in a mistrial because a witness revealed that defendant had previously been in prison. In his second trial, the jury found defendant not guilty of murder, or the lesser-included offenses of passion/provocation manslaughter or aggravated manslaughter, but found him guilty of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1). The judge sentenced defendant to a mandatory extended term pursuant to N.J.S.A. 2C:43-7.1b (the so-called "Three Strikes Law") of sixteen years imprisonment, subject to an 85% parole disqualifier and three years parole supervision, under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant argues on appeal:
THE JUDGE ERRED IN ORDERING THE MISTRIAL WHICH DEFENDANT PERSONALLY DID NOT WANT AND DEFEN[S]E COUNSEL WAS WRONG IN NOT SUPPORTING MR. GRAHAM'S DECISION TO WAIVE ANY OBJECTION TO THE INFORMATION IMPROPERLY BEFORE THE JURY. (Partially raised below). POINT II
THE JUDGE'S FAILURE TO EXPLAIN DEFENDANT'S THEORY OF CAUSATION AND TO CLEARLY DISTINGUISH BETWEEN CAUSATION AS APPLIED TO PURPOSEFUL OR KNOWING CONDUCT AND CAUSATION AS APPLIED TO RECKLESS CONDUCT MAY HAVE CAUSED THE JURY TO NOT CONSIDER CAUSATION AS TO RECKLESS CONDUCT. (Not Raised Below).
THE 16-YEAR EXTENDED TERM SENTENCE IMPOSED ON MR. GRAHAM WAS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.
We reject these arguments and affirm.
On August 19, 2003, at about 1:00 a.m., defendant and Thomas Jackson argued outside defendant's home in Mount Holly. Several other individuals were present. According to one witness, one of the other individuals possessed a knife. Defendant went over to that individual, who handed defendant something. Defendant then turned toward Jackson, who began to run but fell over and was lying on his back. Defendant stood at Jackson's feet. Jackson kicked at defendant from the ground, and defendant made several striking motions toward Jackson's legs. Jackson was stabbed twice in the thigh, just above the knee. One of the wounds severed a major artery.
Emergency responders arrived. Because of the severity of the injury, they decided it would be advisable to call for a helicopter to airlift Jackson to Cooper Hospital in Camden. However, while waiting for the helicopter, the emergency responders determined that Jackson's condition was deteriorating and he had gone into cardiac arrest. As a result, the emergency responders canceled the helicopter and transported Jackson to a nearby local hospital, where he was pronounced dead at about 2:15 a.m. He had bled to death as a result of the severance of the artery.
At defendant's first trial, which began on March 20, 2007, the State called as one of its witnesses Jackson's sister, Carol Reed. During cross-examination, defense counsel asked Reed whether, over the last twenty years, she had heard defendant referred to by the nickname "Knowledge." She responded: "When [defendant] got out of prison, that's when I heard other people call him Knowledge. Growing up, I never heard nobody call him Knowledge."
Defense counsel immediately asked for a sidebar conference and moved for a mistrial. The prosecutor objected, urging the court to give the jury a curative instruction and continue with the trial. The judge excused the jury and heard further argument, after which she took a recess for about twenty minutes. When the judge returned to the bench, she announced her decision. She agreed with defense counsel's position, namely that a curative instruction could not effectively eliminate the prejudice to defendant ...