INDICTMENT TO OVERRIDE THE PROSECUTION'S BURDEN TO PROVE ESSENTIAL ELEMENTS WAS CONTINUED BY THE FACT THAT DEFENDANT WAS INDICTED AND CONVICTED OF AGGRAVATED MANSLAUGHTER WHERE THE GRAND JURY WAS UNAWARE THAT THE WRITTEN LEGISLATIVE INTENT OF N.J.S.A.[]2C:11-4(b)(3) PRECLUDES THE ACT
*123 APPENDIX "A" - Continued
OF FLEEING TO CONSTITUTE MANIFEST INDIFFERENCE OF LIFE[.]
POINT II VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. THERE WAS A MANIFEST DENIAL OF JUSTICE. (RAISED BELOW R.[ ]2:10-1;[ ]3:20-1).
(A) THE PROSECUTION'S EVIDENCE DEMONSTRATED THAT THE DEFENDANT WAS NOT IN "IMMEDIATE FLIGHT" AN ESSENTIAL ELEMENT OF FELONY MURDER AND THEREFORE AS A MATTER OF LAW THE CONVICTION CAN NOT STAND. FURTHERMORE NO REASONABLE INFERENCE EXISTED BY WHICH ANY RATIONAL TRIER OF FACT COULD HAVE FOUND THAT THE DEFENDANT WAS MORE PROBABLE THAN NOT IN IMMEDIATE FLIGHT FROM THE ALLEGED ROBBERY(S).
(1) DOUBLE JEOPARDY HAS ATTACHED AND THE PROSECUTION IS NOT ONLY PRECLUDED FROM SEEKING CONVICTION OF FELONY MURDER BUT DEATH CAUSED BY ELUDING A POLICE OFFICER PURSUANT TO N.J.S.A.[ ]2C:11-4b(3)[.]
(B) THE ESSENTIAL ELEMENTS OF "KNOWING" INFLICTION OR "KNOWING" USE OF FORCE REQUIRED FOR 2 nd DEGREE ROBBERY AND "PURPOSELY" INFLICTS "SERIOUS BODILY INJURY" REQUIRED FOR 1 st DEGREE
APPENDIX "A" - Continued
ROBBERY WAS NOT PROVEN BEYOND A REASONABLE DOUBT. PROSECUTION'S RIGHT TO REASONABLE INFERENCES FOR PURPOSES OF MOTION DOES NOT REDUCE ITS BURDEN OF PROVING ALL ESSENTIAL ELEMENTS OF THE CRIME OF FELONY MURDER.
(C) VERDICT OF GUILT AS TO AGGRAVATED MANSLAUGHTER WAS AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE PURSUING POLICE OFFICER STATED THAT THE ACCIDENT WAS NOT FORESEEABLE AND THE TRIAL COURT DENIED THE MOTION BASED ON EVIDENCE NOT IN THE RECORD.
(D) VERDICT OF AGGRAVATED ASSAULT IS AGAINST THE WEIGHT OF THE EVIDENCE. THE PROSECUTION HAD NO PROOF AS TO PERMANENT INJURIES OR PROBAB[I]LITY OF DEATH.
(E) VERDICT OF BURGLARY AND ELUDING THE POLICE OFFICER IS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT III DEFENDANT WAS DENIED OPPORTUNITY TO PRESENT DEFENSE TO FELONY MURDER AND AGGRAVATED MANSLAUGHTER. LOWER COURT'S FAILURE [TO GRANT] DISCOVERY OF INTERNAL PROSECUTOR'S REPORT AND FAILURE TO GRANT REQUEST FOR MISTRIAL CONSTITUTED A MANIFEST INJUSTICE. OBVIOUS FAILURE OF JUSTICE EXISTS WHERE THERE IS A DENIAL *124 APPENDIX "A" - Continued
OF EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS OF LAW.
POINT IV JURY CHARGES READ AS A WHOLE DENIED VIOLATED [SIC] DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL TRIAL AND CONSTITUTED DENIAL OF DUE PROCESS OF LAW. (PLAIN ERROR, IN PART)
(A) EVIDENCE CLEARLY INDICATED SUPERVENING RESPONSIBILITY OF COURT TO CHARGE THE JURY WITH MANSLAUGHTER PURSUANT TO N.J.S.A. 2C: 11-4b(3) AS AN AFFIRMATIVE DEFENSE AND FAILURE TO SO INSTRUCT JURY VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL[.]
(1) DEFENDANT WAS DENIED A FAIR TRIAL FOR FAILURE OF THE COURT TO CHARGE THE STATUTE AS A LESSER INCLUDED CRIME. THE RIGHT TO HAVE THE JURY CONSIDER LESSER INCLUDED OFFENSES IMPLICATES "THE VERY CORE OF THE GUARANTEE OF A FAIR TRIAL" STATE V. PURNELL, 126 N.J. []518, []531[, 601 A.2d 175] (1992)[.]
(B) LOWER COURT IMPROPERLY CHARGED THE JURY AS TO THE CHARGES