(APPEARANCES TENDERED.) CHIEF JUSTICE RABNER: GOOD MORNING, COUNSEL AND
WELCOME, PLEASE BE ADVISED, JUSTICE SOL MONDAY IS PARTICIPATING IN TODAY'S ARGUMENT, HE IS
GOING TO BE WATCHING THE RECORDING OF TODAY'S EVENT AND WILL BE FULLY PARTICIPATING AND
THAT APPLIES TO ALL MATTERS TODAY. MS. GIFFORD, PLEASE GO AHEAD. ALISON GIFFORD:
THANK YOU. GOOD MORNING YOUR HONORS AND MAY IT PLEASE THE COURT, I WOULD LIKE
TO RESERVE TWO MINUTES FOR REBUTTAL, IF NECESSARY. THE COURT: AUND
YOU'RE WELCOME TO TAKE OFF YOUR MASK DURING YOUR ARGUMENT IF YOU WOULD LIKE.
ALISON GIFFORD: THANK YOU. OUR LEGISLATURE HAS CONTEMPLATED THE USE OF
CORPORAL PUNISHMENT BY A GUARDIAN AND HAS BEEN CAREFUL TO PENALIZE ONLY THE USE OF EXCESSIVE
CORPORAL PUNISHMENT. THE PURPOSE OF THIS LIMITATION IS TO PROTECT PARENT'S
CONSTITUTIONALLY FALL RIGHTS TO RAISE THEIR CHILDREN AND TO PREVENT THE UNNECESSARY SPRGS
OF FAMILIES, BECAUSE THIS PRINCIPLE WAS NOT PROPERLY ARTICULATED TO THE JURY IN AL LAS
REVERSAL OF OUR SIMPLE ASSAULT CONVICTION IS TRIED, FOUR GRANDCHILDREN UNDER HER CARE.
THE CHARGES WERE BASED ON ACCUSATIONS OF CORPORAL PUNISHMENT. A.L.A.'S
DEFENSE WAS, DISCIPLINE HER GRANDCHILDREN, HER BEHAVIOR NEVER CROSSED THE LINE INTO ILLEGAL
CONDUCTED. AT THE CONCLUSION OF TRIAL, ONE OF THE ENDANGERING CHARGES WAS
DISMISSED AND THE JURY WAS INSTRUCTED ON ENDANGERING AND THE LESSER INCLUDED OF SIMPLE
ASSAULT WITH RESPECT TO THE REMAINING DLEE GRANDCHILDREN. WHILE THE JURY WAS
CORRECTLY TOLD TO ACQUIT A.L.A. OF ENDANGERING FIT FOUND HER USE OF CORPORAL PUNISHMENT
USEFUL, IT WAS NOT TOLD THE SAME WITH RESPECT TO SIMPLE ASSAULT. THE JURY
ACQUITTED A.L.A. OF ALL ENDANGERING CHARGES BUT CONVICTED HER OF ONE COUNT OF SIMPLE
ASSAULT. LOOKING AT THE JURY'S VERDICT, IT IS VERY POSSIBLE, IF NOT LIKELY
THAT THE JURY ACQUITTED A.L.A. OF ENDANGERING BECAUSE IT FOUND HER USE OF CORPORAL
PUNISHMENT REASONABLE BUT THEN WENT ON TO CONVICT HER OF SIMPLE ASSAULT BECAUSE IT WAS
NOT TOLD THAT IT'S FINDING REQUIRED AN ACQUITTAL OF THE SIMPLE ASSAULT CHARGE AS WELL,
IN OTHER WORDS, THERE IS A SER LIKELIHOOD, THAT A.L.A. WOULD HAVE BEEN ACQUITTED OF ALL
CHARGES, ACCORDINGLY A.L.A. RESPECTLY REQUESTS THAT THIS COURT, REVERSE HER SIMPLE ASSAULT
CONVICTION AND START A NEW TRIAL AND THAT CLON CLUDZ MY. THE PRINCIPLE THAT
PARJTS CAN LAWFULLY INFLICT REASONABLE CORPORAL PUNISHMENT DATES BACK TO THE COMMON LAW
AND HAS BEEN INCORPORATED INTO THE LAWS OF EVERY STATE IN THIS COUNTRY. IN
NEW JERSEY, WE SEE THIS PRINCIPAL, REFLEBTD IN TWO PLACES IN THE EVEN DOGGING AND TITLE
# 9 STATUTES AND IN N.J.S.A. 2:00, 3 A WHICH MAKES REASONABLE CORPORAL, ROLL PUNISHMENT
AN AR I AFFIRMATIVE DEFENSE. JUSTICE ALBIN: COUNSEL, IS IT YOUR POSITION
THAT THE COURT SHOULD HAVE BEEN GIVEN THE SAME LANGUAGE FROM K A THAT IT GAVE IN THE
ENDANGERING CHARGE ON A SIMPLE ASSAULT CHARGE, JUST REPEATED IT AFTERWARDS?
ALISON GIFFORD: IN THIS CASE, THAT WOULD HAVE BEEN APPROPRIATE, I THINK TO CAPTURE THE
PRINCIPAL OF 2:003 A, BUT I THINK IDEALLY ON A RETRIAL HERE THERE WOULD BE A MODEL CHARGE
ON THE 2:0038 DENSE WHICH EXPLICITLY, 2C:3. 8 FRNGS A DENSE WHICH TOGETHER KAMENT TURS
THE PRINCIPLE THAT REASONABLE CORPORAL PUNISHMENT IS NOT A CRIME, BUT 2C:3 A BREAKS IT
DOWN INTO 4 CAT, CATEGORIES AN I CAN GO THROUGH THIS THOSE SFUR AND HIGHLIGHT WHY IN THIS
CASE THERE WAS NORTHERN, MORE THAN ENOUGH ELEMENTS FOR THAT CHARGE. JUSTICE ALBIN:
BUT IN THIS CASE, THE DEFENSE ATTORNEY WAS ASKING FOR THE K A LANGUAGE, CORRECT?
ALISON GIFFORD: YES AND THE K A LANGUAGE ACTUALLY IS TAKEN FROM THE STATE VERSUS RICH
FIFTH DEGREE SON CASE FROM A VERY LONG TIME AGO WHICH IS ARTICULATING THE COMMON LAW DEFENSE
THAT CORPORAL PUNISHMENT IS NOT A CRIME, AND THEN WE SEE IN 2C:3 A, PRINCIPLE OF REASONABLE
CORPORAL PUNISHMENT SO THAT THE CHARGE IS MEANT TO REFLECT SO ALL OF THESE ARE REALLY
THE SAME, SUBSTANTIVELY THE SAME THING AND ARTICULATE THE REASONABLE, SAME PRONE,
PRINCIPAL THAT REASONABLE CORPORAL PUNISHMENT IS NOT A CRIME. JUSTICE ALBIN:
IT IS YOUR POSITION THAT WHEN DEVENTS COUNSEL, REQUESTED THE K A LANGUAGE THAT WAS THE
SUBSTANTIALLY, N SUBSTANTIAL EQUIVALENT MUCH REFERENCING 2C:3 A. ALISON
GIFFORD: AND AT THAT POINT THE TRIAL COURT HAD AN OBJECTION TO ACCURATELY INSTRUCT THE
JURY ON THE LAW. CHIEF JUSTICE RABNER: IF YOU WANT TO ADDRESS THE FOUR
ELEMENTS YOU ARE OO WELCOME TO DO SO JUST STRIE TO DO SO SUCCINCTLY. ALISON
GIFFORD: THE FIRST ELEMENT IS THAT THE, SAFETY OF ANOTHER AN HERE THERE IS NO DISPUTE
THAT A.L.A. FALSE UNDER THAT CATEGORY AS THE GUARDIAN OF HER FOUR GRANDCHILDREN.
THE SECOND ELEMENT IS THAT THE FORCE WAS USED FOR THE PURPOSE OF FURTHERING THAP
RESPONSIBILITY SO THAT NENS, THE FORCE HAD A DISCIPLINARY PURPOSE. AGAIN, THERE WAS NO
QUESTION THAT WAS SUPPORTED BY THE RECORD, THE TESTIMONY ABOUT CORPORAL PUNISHMENT CAME
FROM THE TEENAGE JERS WHO SEFD THAT, THE THIRD ELEMENT IS THAT THE FORCE WAS USED TO THE
EXTENT NECESSARY TO FURTHER THAT RESPONSIBILITY, WHICH, NENS, CAPTURES THE PRINCIPAL THAT THE
FORCE ITSELF NOT BE EXCESS SIFD AND THE EVIDENCE IN THIS CASE OF ANY INJURIES WAS UTTERLY
LACKING, THERE WAS NO MEDICAL RECORDS, BOTH THE CASEWORKER AND THE LAWYER TESTIFIED THAT
THEY DIDN'T SEE ANY INJURIES, THE TEENAGE JERS TESTIFIED, TOLD THE THAT THE OLDER GIRLS
WERE SPANNINGED WITH THEIR CLOTHES ON, THE LACK OF EVIDENCE IN THIS CASE WITH INJURY WAS
THE ENOUGH, ENOUGH FOR OUR JURY TO FIND THAT THE FORCE WASN'T EXCESSIVE. FINAL
ELEMENT IS THE DEFENDANT'S PLEA FORM THAT THE USE TO USE FORCE WAS REASONABLE, AND THIS WAS
THE THEORY THAT WAS REPEATEDLY REITERATED BY DEFENSE COUNSEL, TRAGIC STATE OF HER OWN
SCHIRN AND DEFRNTS COUNSEL EMPHASIZED BOTH AN OPENING AND SUMMATION THAT A.L.A. HAD SUCH
STRICT RULES AN WOULD OCCASIONALLY USE CORPORAL PUNISHMENT BECAUSE SHE DIDN'T WANT HER
GRANDCHILDREN TO SUFFER THE SAME FATE AS HER OWN CHILDREN. AGAIN THERE WAS
ENOUGH EVIDENCE HERE TO SUBMIT THE CHARGE TO THE JURY. SO, IN SUM THERE WAS
JUST MORE THAN A RATIONAL BAILS SIS TO SUPPORT A.L.A.'S REASONABLE CORPORAL PUNISHMENT
DEFENSE AND THE COURT WAS THEREFORE REQUIRED TO INSTRUCT THE JURY THAT REASONABLE CORPORAL
PUNISHMENT IS AN OFFENSE TO SIMPLE ASSAULT. JUDGE FUENTES: COUNSEL.
ALISON GIFFORD: YES, YOUR HONOR. JUDGE FUENTES: THE JUDGE REPEATEDLY APPRISED
THE JURY BOX THAT KORP ROT PUNISHMENT IS A LAWFUL AND ACCEPTED MEANS OF DISCIPLINING CHILDREN,
HE SAID THAT NOT JUST IN THE CHARGE FOR THE SECOND DEGREE OFFENSE, BUT THROUGHOUT THE
JURY CHARGE, HE MADE THAT CLEAR THAT PHYSICAL DISCIPLINE WAS A LAWFUL PRACTICE.
ALISON GIFFORD: NO, YOUR HONOR, THAT WAS JUST STATED IN THE SECOND DEGREE.
JUDGE FUENTES: DIDN'T HE SAY IT IN THE END AS HE WAS RECAPPING TO THE JURY.
ALISON GIFFORD: NO, HE DID NOT, DEFENSE COUNSEL ASKED AT THE END OF THE CHARGE THAT IT
BE AT TO SIMPLE ASSAULT AND THE TRIAL COURT REJECTED THAT SUGGESTION SO IT WAS NEVER
ARTICULATED TO THE JURY IN ANY OTHER CONTEXT EXCEPT THE ENDANGERING INSTRUCTION.
JUDGE FUENTES: OKAY. JUSTICE ALBIN: WAS IT DASH WAS IT THE DEFENDANT'S
POSITION THAT SHE DID NOT STRIKE THE 3 YEAR OLD AS CLAIMED FWEFL TIMES WITH A BELT?
WHAT WAS THE POSITION OF THE DEFENSE ON THAT. ALISON GIFFORD:
A.L.A.'S POSITION CONCEDED THAT THERE WAS SOME SPA SPANKING THAT HAPPENED BUT IT WAS UNCLEAR
IT WAS AN AUDIO RECORDING, NOT A VIDEO AND SO IT WAS UNCLEAR EXACTLY WHAT WAS HAPPENING
IN THAT RECORDING AND THAT IT WAS ULTIMATELY UP TO THE JURY TO DECIDE WHAT WAS HAPPENING
IN THAT RECORDING AND DID IT CROSS THE LINE. SO, A.L.A. -- A.L.A. CONCEDED
THROUGHOUT THE CASE THAT SHE WOULD OCCASIONALLY USE CORPORAL PUNISHMENT AND THAT THERE WAS
SOME SPANKING THAT WAS HAPPENING IN THE VIDEO BUT EXACTLY HOW SEVERE WAS A, FOR THE JURY
TO DECIDE. THE COURT: WE MAY BE GETTING AHEAD IN YOUR ARGUMENT. THIS HINTS
TOWARDS THE HARMLESS ERROR QUESTION. ALISON GIFFORD: YES, YOUR HONOR.
THE COURT: WHY DON'T YOU ADDRESS THAT. IF I UNDERSTOOD IT CORRECTLY, TWELVE TIMES THE
THREE YEAR OLD WAS STRUCK WITH A BELT FOR PLAYING GAMES AND NOT GOING TO BED EARLY ENOUGH.
EXPLAIN YOUR POSITION ON HARMLESS ERROR. ALISON GIFFORD: I
THINK THERE IS TWO THINGS THAT I WOULD LIKE TO ADDRESS THERE, THE FIRST IS AS I JUST RE
ITERATED THE RECORDING IS UNCLEAR SAM WHAT WAS HAPPENING IN THE RECORDING AND AS DEFENSE
COUNSEL EMPHASIZED IN SUMMATION WE DON'T KNOW IF THE BELT IS HITTING THE CHILD OR THE
BED. WE DON'T KNOW IF THE CHILD IS SCREAMING OUT OF FEAR OR OUT OF PAIN. ULTIMATELY,
WHETHER THAT WAS EXCESSIVE WAS A QUESTION FOR THE JURY. WE HAD TESTIMONY HERE FROM THE
OLDER GIRLS THAT THE GIRLS WOULD BE SENT TO THEIR BED IF THERE WERE RULES BROKEN, THAT WAS
LIKE A TIME OUT AN THAT HERE THE GIRLS GOT OUT OF BED AFTER BEING TOLD TO GET INTO BED.
AGAIN IT'S NOT FOR THIS COURT TO DECIDE WHETHER OR NOT THIS WAS EXCESSIVE OR REASONABLE
BUT WHETHER THERE WAS ENOUGH EVIDENCE FOR THE JURY TO HAVE TO MAKE THAT DECISION IN THIS
CASE. HERE WHAT IS CRITICAL IS THAT THE JURY ACQUITTED A.L.A. OF ALL ENDANGERING CHARGES
SO THERE IS A STRONG SUGGESTION IN THE JURY'S VERDICT THAT IT DID NOT FIND HER USE OF
CORPORAL PUNISHMENT EXCESSIVE AND THAT'S WHY IT AK KWID OF ENDANGERING WITH RESPECT TO
A A AND THE REMAINING OF THE REST OF THE GRANDCHILDREN. JUSTICE ALBIN:
WHAT WAS THE TIMING BETWEEN THE CLAIM, THE CLAIM STRIKING THE SCHIELD WITH THE BELT AND
THE TIME WHEN THE CHILDREN WERE CHECKED AT THE HOSPITAL TO SEE WHETHER THEY HAD ANY INJURIES
AND APPARENTLY, ACCORDING TO THE RECORD, THEY HAD NONE, GO AHEAD. ALISON GIFFORD:
MY UNDERSTANDING WAS ABOUT TWO WEEKS BETWEEN WHEN -- ONE TO TWO WEEKS BETWEEN WHEN THE
SPANKING OCCURRED AND WHEN THE CHILDREN WERE CHECKED FOR NO INJURIES. AGAIN,
THE OLDER GIRLS WERE TESTIFYING IN THIS CASE THAT IT SUPPOSEDLY HAPPENED EVERY OTHER DAY
AND THE DEFENSE IN THIS CASE WAS THAT THE OLDER GIRLS WERE NOT CREDIBLE IN THEIR TESTIMONY
AND THEY WERE EK AGE RATING THE FREQUENCY AND EXCESSIVENESS OF THE CORPORAL PUNISHMENT
BECAUSE THEY DIDN'T LIKE THE STRICT RULES OF A.L.A. AND THEY WANTED TO GET OUT FROM UNDER
HER CARE. SO THE DEFENSE IN THIS CASE REALLY WAS THAT THIS THAT DEFENSE WAS
NOT CREDIBLE WHICH THE JURY SEEMED TO BELIEVE BECAUSE IT ACQUITTED HER OF SO MANY OF THE
CHARGES. JUSTICE PATTERSON: YOU REALLY DON'T SPECULATE AS TO THE REASONABLE
FOR AN ACQUITTAL JUST AS WE DON'T SPECULATE AS TO THE CONVICTION FOR ONE OFFENSE AND NOT
THE OTHER, CAN WE? ALISON GIFFORD: WE DON'T KNOW WHAT HAPPENED IN THE JURY ROOM.
JUSTICE PATTERSON: YOUR ARGUMENT IS THAT WITH THE CHARGE, WITH THE K A CHARGE,
THAT SHE WAS ACQUITTED OF ENDANGERING SO PERHAPS THAT CHARGE CREATED ENOUGH REASONABLE DOUBT
IN THE MINDS OF THE JURY AS TO WHETHER SHE WAS GUILTY ON EVENING DANGERING, BUT WE JUST
HAVE NO WAY AND IT IS AS IT SHOULD BE TO KNOW WHAT GOES ON IN A JURY ROOM.
ALISON GIFFORD: YOU'RE RIGHT, YOUR HONOR, WE DON'T KNOW WHAT HAPPENED IN THE JURY ROOM,
BUT WHEN WE'RE TRYING TO FIGURE OUT THE QUESTION OF WHETHER THE OMISSION OF THIS CHARGE
COULD HAVE IMPACTED THE JURY'S VERDICT THERE IS CERTAINLY A POSSIBILITY THAT THE JURY
DIDN'T FIND THAT THE CORPORAL PUNISHMENT WAS EXCESSIVE AND THAT HAD THE JURY BEEN PROPERLY
INSTRUCTED ON THE LAW WITH RESPECT TO SIMPLE ASSAULT THAT IT WOULD HAVE ACQUITTED ON THAT
CHARGE, AS WELL. CHIEF JUSTICE RABNER: HOW WERE THE CHILDREN DRESSED IN
THIS INCIDENT. ALISON GIFFORD: THE CHILDREN WERE ALWAYS FULLY CLOTHED.
THE ONLY TESTIMONY CAME FROM THE OLDER GIRLS BUT THEY TESTIFIED THAT THE CHILDREN WERE
ALWAYS CLOELT CLOTHED DURING NID SPANKING. THERE WAS NO EVIDENCE OF ANY INJURY AT ANY
POINT WHEN THEY WERE CHECKED THROUGHOUT THIS CASE AN THROUGHOUT THEIR ENTIRE CHILDHOOD.
THERE WAS NEVER ANY REPORT FROM SCHOOL TEACHERS OR FROM FRIENDS OR ANY ONE WHO CAME INTO
CONTACT WITH THE GIRLS THAT THERE WAS INJURIES THAT WERE OBSERVED. THE COURT:
PLEASE GO AHEAD. ALISON GIFFORD: THANK YOU, YOUR HONOR. IN
ADDRESSING THE HARMLESS ERROR QUESTION, I REALLY THINK THAT I WOULD JUST LIKE TO HIGHLIGHT
HOW JUDGE FISHERER I THINK PUT IT PERFECTLY IN HIS DISSENT WHEN HE SAID THAT -- AND AGAIN,
I KNOW WE DON'T SPECULATE ON EXACTLY WHAT THE JURY'S VERDICT WAS, BUT JUDGE FISHERER SAID
TO ASSUME THAT THE JURY ACQUITTED THE DEFENDANT OF CHILD ENDANGERMENT BECAUSE IT BELIEVED
SHE WAS DISCIPLINING THE CHILD BUT NOT EXCESSIVELY THUS IT IS HIGHLY LIKELY THAT
AFTER ACQUITTING THE DEFENDANT OF ENDANGERING THIS ONE CHILD IT CONVICTED HER OF SIMPLE
ASSAULT FROM ENGAGING IN THAT SAME CONDUCT BECAUSE IT WAS NOT TOLD IT COULD ACQUIT IF
THE DEFENDANT WAS MERELY SPANKING IN CHILD IN A REASONABLE WAY. JUSTICE
PATTERSON: ARE YOU SAYING WE SHOULD TRY TO FIGURE OUT WHAT COULD HAVE HAPPENED, OBVIOUS
LIE ENDANGERING HAS SEVERAL ELEMENTS WE HAVE NO IDEA WHY THE JURY DECIDED TO ACQUIT JUST
AS WE HAVE NO IDEA WHY THEY DECIDE TO CONVICT OF SIMPLE ASSAULT. CAN WE JUST
STEER CLEAR OF SPECULATING ON THE RESULTS OF A VERDICT AS TO WHY? ALISON
GIFFORD: IN TERMS OF DEALING WITH THE HARMLESS ERROR QUESTION, WE DO KNOW THAT ONE OF
THE ELEMENTS OF EVENING DANGERING IS THAT THE CORPORAL PUNISHMENT BE EXCESSIVE AND THAT
DEFENDANT WAS ACQUITTED OF THAT CHARGE. AS I HIGHLIGHTED EARLIER, THE REAL
QUESTION IS WHETHER THE LACK OF -- AS YOU ARE REAR R OAE RIGHT, YOUR HONOR, THE REAL
QUESTION IS WHETHER THE OMISSION OF THIS INSTRUCTION WITH RESPECT TO SIMPLE ASSAULT
COULD HAVE IMPACTED THE JURY'S DELIBERATION HERE. JUSTICE PATTERSON: THERE IS
ALSO THE ELEMENT OF DEBAUCHING THE MORAL ALWAYS OF -- ALISON GIFFORD: THERE ARE
ADDITIONAL ELEMENTS OF ENDANGERING. JUSTICE PATTERSON: THEY COULD HAVE
FELT THE STATE FELL SHORT ON THAT. ALISON GIFFORD: THE ACQUITTAL OF ENDANGERING
DOESN'T UNDERMINE A.L.A.'S ARGUMENT THAT THERE IS A REAL ARGUMENT THAT THE JURY HAD IT
BEEN PROPER REINSTRUCTED COULD HAVE ACQUITTED HER OF THE SIMPLE ASSAULT CHARGE, AS WELL.
THE COURT: PLEASE GO AHEAD. JUDGE FUENTES: YOU WOULD AGREE
THAT THE EVIDENCE WOULD SUPPORT THAT STRIKING A THREE YEAR OLD GIRL WITH A BELT TWEFLS
TIMES AS THE CHILD CRIED EVERY TIME, A REASONABLE JURY COULD FIND THAT TO BE EXCESSIVE
CORPORAL PUNISHMENT. ALISON GIFFORD: A ROINL JURY COULD FIND EK KRES
S-OR GIVEN THE TO IT AT THAT TIME OF THE CIRCUMSTANCES IN THIS CASE, IN ALL OF THE
CIRCUMSTANCES THAT A.L.A. WAS DEALING WITH THE LETTER AND HER REASON FOR HAVING SUCH STRICT
RULES AND WHAT WAS HAPPENING IF THE JURY WANTED TO FIND WHAT WAS HAPPENING IN THE RECORDING
WAS NOT AS DEFENSE COUNSEL SUGGESTED IN SUMMATION THAT THE BELT WAS -- OR WHATEVER WAS
HAPPENING IN THAT RECORDING WAS NOT NECESSARILY THE CHILD HERSELF BEING SPANK SPANKED
OR SCREAMING OUT OF PAIN IT KOVN FEAR. THESE WERE QUESTIONS THAT WERE ULTIMATELY FOR
THE JURY TO DECIDE WHETHER IT WAS EXCESSIVE OR NOT AND THE JURY COULD HAVE DECIDED EITHER
WAY BUT AT THE END VT DAY THE JURY NEED TO BE GIVEN THE INSTRUCTION THAT IF IT DID FIND
THAT IT WAS REASONABLE THAT REQUIRED THE ACQUITTAL OF SIMPLE ASSAULT.
JUDGE FUENTES: THE QUESTION THE JURY NEEDED TO DETERMINE. ALISON GIFFORD:
THE STATE DIDN'T DISPUTE THAT AT TRIAL BUT SAID THAT AT THIS TIME WAS REASONABLE PLEA
EVEN TRENCHED IN THE OTHER PART OF THE INSTRUCTION BUT IT WAS ONLY GIVEN WITH
RESPECT TO THE ENDANGERING CHARGE. IT WAS NEVER REPEATED IN THE SIMPLE ASSAULT CHARGE
BUT IT SEEMED AT TRIAL THAT THE STATE AGREED WITH THE SUBSTANCE OF THEIR REQUEST BUT THOUGHT
IT WAS ELSEWHERE BUT I THINK THE JURY INSTRUCTION MAKES CLEAR THAT IT WAS NOT.
CHIEF JUSTICE RABNER: MS. GIFFORD, IS SIMPLE ASSAULT COMMONLY SCHARJED AS A LESSER
INCLUDED FOR ENDANGERING? ALISON GIFFORD: I DON'T HAVE THE DATA BEHIND HOW
OFTEN THAT HAPPENS. I THINK IT COULD -- I WOULDN'T BE SUPPRESSED IF IT HAPPENED. IF IF
ASSAULT WAS CHARGED EITHER AS A LESSER OR RELATED OEVENLS IN THESE CHILD ENDANGERING CASES
AND I THINK THAT THEY ARE REALLY ESSENTIAL IN THOSE TYPES OF CASES THAT THE JURY IS BEING
TOLD THAT IF WE'RE DEALING WITH CASES OF CORPORAL PUNISHMENT APPEND ASSAULT IS BEING USED
TO CRIMINALIZE THAT CONDUCT THEN THE JURY HAS TO ACQUIT IF IT FINDS THAT THE CORPORAL
PUNISHMENT IS REASONABLE BECAUSE THAT'S WHAT 2C:38 REPRESENTS AND THERE ARE IMPORTANT
REASONS BEHIND THAT LIMITATION WHICH I HIGHLIGHTED IN MY OPENING STATEMENT. WE WANT
TO PROTECT PARENT'S CONSTITUTIONAL RIGHTS TO RAISE THEIR CHILDREN. WE DON'T WANT TO JUN
NECESSARILY SEPARATE FAMILIES AN WE KNOW THERE ARE SERIOUS COLLATERAL CONSEQUENCES BOTH
FROM A CRIMINAL CONVICTION AND A FINDING OF ABUSE AN NEGLECT IN TITLE 9 PROCEEDINGS.
JUSTICE ALBIN: JUST TO BE CLEAR, THIS WAS SOMETHING THAT AROSE IN MY MIND,
AS WELL, SIMPLE ASSAULT IS NOT A LESSER INCLUDED OFFENSE OF ENDANGERING. ALISON
GIFFORD: I BELIEVE IT'S A RELATED OFFENSE, YOUR HONOR. JUSTICE ALBIN: IT IS
A RELATED OFFENSE. I WANT TO POINT THAT OUT BECAUSE IT IS REPEATED IN THE RECORD AS
THOUGH IT IS A LESSER INCLUDED BUT YOU CONCEDE THAT IT IS. ALISON GIFFORD:
I CONCEDED IT IS. IT WAS APPROPRIATE TO CHARGE THE JURY ON THAT LESSER COUNT,
BUT I AGREE THAT IT IS A RELATED ANL NOT AN INCLUDED OFFENSE. THE COURT:
ANYTHING YOU WOULD LIKE TO ADD? ALISON GIFFORD: IF YOUR HONOR'S HAVE NO
FURTHER QUESTIONS, I WOULD JUST LIKE TO SUM UP BY SAYING THAT THE OMISSION OF 2C:38 FROM
A.L.A.'S CASE CREATED A SERIOUS RISK THAT SHE WAS CONVICTED OF A CRIME AND SEPARATED FROM
HER GRANDCHILDREN DESPITE BRICKING NO LAW AND IF, PARENTS ACROSS THE STATE ARE BEING AT
RISK OF BEING INCARCERATED AND TORN FROM THEIR FAMILIES FROM USING ANY FORCE AGAINST THEIR
CHILDREN, THAT'S THE EXACT OUTCOME THAT 2C:38 DEEMS TO PREVENLT, A.L.A. DEEMS, DESERVES
A FAIR TRIAL WHERE THE JURY IS PROPERLY INSTRUCTED ON THE LAUCHLT. THE
COURT: THANK YOU, MS. HOUT MONICA DO OUTEIRO: THIS CASE ASKS THIS
COURT TO ADDRESS AN ISSUE OF FIRST IMPRESSION, THE AFFIRMATIVE DEFENSE
CONTAINED IN A STATUTE THAT'S BEEN UNTOUCHED BY OUR LEGISLATURE SINCE IT WAS
ENACTED WITH THE 2C AND FOR WHICH THERE HAS BEEN NO CASE INTERPRETING.
THE STATE SUBMITS THAT THE DETERMINATION OF THE ULTIMATELY ISSUE BEFORE THIS COURT
WHETHER THIS DEFENDANT IS ENTITLED TO A NEW TRIAL FALLS AND RISES, RISES
AND FALLS WITH THIS STANDARD OF REVIEW. THE STATE'S SAYS THIS IS NOT A REQUEST
WHERE THE DEFENDANT REQUESTED THE INSTRUCTION IN THE FIRST INSTANCE BEFORE
THE TRIAL COURT. I THINK WE COULD STATE THAT THE RECORD IS CLEAR THAT THE STATUTE
DOES NOT ENTER THIS CASE UNTIL A FOOTNOTE IN THE DISSENTING OPINION. THE
OPINION THAT BRINGS THIS CASE BEFORE THIS COURT. AS SET FORTH AND DID HE
BEEN FIND BY THE APPELLATE DIVISION MAJORITY DECISION WITH EXTENSIVE
QUOTES FROM THE DEFENDANT'S SUBMISSIONS OF THE ISSUE BEFORE IT. IT SAW THE ISSUE
BEFORE IT TO BE ONE OF A REQUEST BY THE DEFENDANT OF THE TRIAL COURT TO TAILOR
THE SIMPLE ASSAULT INSTRUCTION TO THE MATERIAL FACTS OF THE CASE BEFORE
IT BY TELLING THE JURY ESSENTIALLY THAT NOT ALL CORPORAL PUNISHMENT OR CORPORAL
PUNISHMENT IS NOT SIMPLE ASSAULT. THIS REQUEST BY TRIAL COUNSEL
DID NOT CITE 2C 3-EIGHT BY STATUTORY CITATION NOR DID IT CITE TO IT BY
REFERENCE TO ALL. ELEMENTS AND THE STATE WOULD SUBMIT THAT THOSE FAILURES MAKE
THIS NOT A CLEAR REQUEST FOR THE 2C 3-EIGHT DEFENSE. IN AN
INTERESTING POSITION OF BEING BEFORE THIS COURT COUNSEL FOR THE STATE AGREES WITH
COUNSEL FOR THE DEFENDANT WITH REGARD TO THE FOUR ELEMENTS OF THE THREE-
EIGHT DEFENSE AND IN ORDER FOR THE TRIAL COURT TO HAVE TO HAVE BEEN REQUIRED TO
GIVE THIS INSTRUCTION WHERE NOT REQUESTED THE STATE WOULD SUBMIT, UNDER
THIS COURT'S PRECEDENT OF STATE VS. WALKER THERE WOULD NEED TO HAVE SOME EVIDENCE
TO EACH OF THESE ELEMENTS, THE SPECIAL RESPONSIBILITY, THE PURPOSE, THE
NECESSITY AND REASONABLENESS. AND THE STATE WOULD SUBMIT THAT HERE THE NECESSITY
AND PURPOSE ELEMENTS THERE WAS NOT SUFFICIENT EVIDENCE WITH REGARD TO THOSE
IN ORDER TO REQUIRE THE COURT TO GIVE THIS UNREQUESTED INSTRUCTION.
WHILE THE TESTIMONY WITH REGARD TO THIS INSTANCE OF ABUSE OF THE THREE-YEAR OLD
WAS SPARSE, WHAT WE HAVE IS THE TESTIMONY OF 17-YEAR OLD THAT IMMEDIATELY
PRIOR TO THE 12 STRIKES WITH THE BELT THE CHILD GOT OUT OF BED TO GET A TOY B THIS IS
THE SOLE EVIDENCE WE HAVE IN THIS RECORD AS TO WHY THE THREE-YEAR OLD WAS
STRUCK 12 TIMES WITH A BELT ADMITTEDLY OVER HER CLOTHING BUT WHILE SHE WAS CRYING
AND SAYING OU. BECAUSE THESE FACTS TO TO THE CLEARLY INDICATE ALL OF THE
ELEMENTS OF THE DEFENSIVE WOUNDS THE TRIAL COURT DID NOT ERR IN NOT PROVIDING THAT
INSTRUCTION TO THE JURY AND DEFENDANT'S CONVICTION SHOULD BE AFFIRMED.
CHIEF JUSTICE RABNER: IF THE CHARGE CAKE OR A CASE SIMILAR
TO THIS ONE AGAINST A GRANDMOTHER OR CUSTODIAN WAS ESSENTIALLY SIMPLE ASSAULT
WOULD IT BE APPROPRIATE FOR A JUDGE TO SIMPLY CHARGE ON INJURY AND INTENT
AND NO MORE THAN THOSE TWO ELEMENTS. MONICA DO OUTEIRO: THERE WOULD BE
NO NEED FOR JURY INSTRUCTION AT ALL BECAUSE IT WOULD BE IN MUNICIPAL COURT
AND IT WOULD BE A BENCH TRIAL. SO THERE WOULD BE NO INSTRUCTION. THE JUDGE WOULD
JUST BE CONSIDERING THE CHARGE. CHIEF JUSTICE RABNER: WOULD
IT BE SUFFICIENT AS, THE HYPOTHETICAL, WOULD IT BE SUFFICIENT FOR THE
MUNICIPAL COURT JUDGE TO COME BACK AND SAY AND I FIND THESE TWO ELEMENTS AND MY
ANALYSIS NEED GO NO FURTHER? MONICA DO OUTEIRO: I THINK THAT
TWO 3-EIGHT SETS FORTH THOSE FOUR ELEMENTS AND I THINK THEY ADDRESS WHAT
WE ALL KIND OF SOMEHOW INHERENTLY KNOW WHEN IT COMES TO I THINK THE PHYSICAL ABUSE
OF A CHILD, RIGHT, THAT WHAT IS GOING TO BE, AND I THINK THIS CASE SORT OF
HIGHLIGHTS IT AS WELL. WHAT'S GOING TO BE REASONABLE AND NECESSARY AND NECESSARY
TO A SPECIFIC PARENTING PURPOSE IS GOING TO BE DEPENDING ON THE AGE OF THE
CHILD. I THINK A COURT WOULD HAVE TO ADDRESS ALL ELEMENTS IN ORDER TO FIND THE
AFFIRMATIVE DEFENSE. CHIEF JUSTICE RABNER: YOU'VE CORRECTLY
POINTED OUT THAT COUNSEL DIDN'T CITE TO THE STATUTE AHEAD OF TIME. THERE WAS AN
OBJECTION IMMEDIATELY AFTER THE CONCLUSION OF THE CHARGE WHERE COUNSEL CAN
FORWARD AND SAID, JUDGE, TELL THE JURY THAT SPANKING IS NOT SIMPLE ASSAULT IF IT
ARISES DURING REASONABLE CORPORAL PUNISHMENT OF A CHILD. WOULDN'T IT HAVE BEEN
APPROPRIATE UNDER THE LAW FOR THE JUDGE TO HAVE GIVEN THAT CHARGE FACED
WITH THAT OBJECTION? MONICA DO OUTEIRO: I THINK FACED WITH THAT
OBJECTION AND AGAIN WHAT WAS BEING REQUESTED WAS TAILORING THE SIMPLE
ASSAULT INSTRUCTION TO INCLUDE THE TC AND THE KA LANGUAGE THAT THE APPELLATE DIVISION
MAJORITY OPINION RECOGNIZED ONLY APPLIES TO THE ENDANGERING CHARGES. ? THIS
THAT THIS ESSENTIALLY DIRECTED VERDICT ENCOMPASS ALL THAT THE JURY WOULD NEED
TO DECIDE IN ORDER TO FIND, WOOL WHY NOT? I MEAN THE LAW SAYS THAT A PARENT
OR A CUSTODIAN IS PERMITTED TO EXERCISE REASONABLE CORPORAL PUNISHMENT, NOT
EXCESSIVE, CORRECT? MONICA DO OUTEIRO: YES.
JUSTICE ALBIN: SO LIKE WOULDN'T THAT BE REASONABLE AND WHY WOULDN'T THAT BE THE
SUBSTANTIAL EQUIVALENT OF 2C 3:EIGHT? MONICA DO OUTEIRO: BECAUSE
I THINK YOU'RE MISSING THAT NECESSITY AND PURPOSE. AND I UNDERSTAND THE
IDEA I THINK IS THAT WHAT REASONABLE CORPORAL PUNISHMENT IS BROAD ENOUGH OF A TERM
TO ENCOMPASS THAT BUT 3-EIGHT ISN'T A CORPORAL PUNISHMENT STATUTE. IT'S NOT
THE KA. JUSTICE ALBIN: WHY WASN'T IT ENOUGH FOR A JUDGE TRAINED
IN THE LAW WOULD NECESSARILY BRING TO MIND THREE TWO EIGHT? AND I'M SAYING THAT BECAUSE
IT'S OBVIOUS WE'RE DETAILING WITH A LEGAL CUSTODIAN OF A CHILD AND I THINK
YOU CONCEDED IN YOUR ANSWER TO THE CHIEF JUSTICE'S QUESTION IF THIS WAS JUST A SIMPLE
ASSAULT CASE AND YOU WERE DEALING WITH A PARENT WHO SMACKED A CHILD YOU
WOULDN'T BE LOOKING TO JUST THE SIMPLE ELEMENTS OF ASSAULT. OKAY BECAUSE PURPOSELY
STRIKE AGO CHILD CAUSING PAIN WHICH IS AN OUCH THAT'S ENOUGH TO CONVICT
SOMEONE OF AN ASSAULT. MONICA DO OUTEIRO: I MEAN I THINK THE IDEA
THAT IT WOULD HAVE BEEN ENOUGH, I THINK THIS CASE SHOWS IT'S NOT, RIGHT,
BECAUSE WE HAVE TRIAL COUNSEL THAT DOESN'T ASK FOR THE 38 BY CITATION TO THE STATUTE OR
ELEMENTS OR ANYTHING. WE HAVE A DEFENSE COUNSEL THAT DOESN'T TRACE BEFORE
THE APPELLANT COURT. JUSTICE ALBIN: HE SAID IT'S NOT A CRIME.
IT'S NOT A CRIME FOR A GRANDMOTHER TO EXERCISE CORPORAL PUNISHMENT ON A
CHILD. WOULD YOU AGREE WITH THAT, REASONABLE? MONICA DO
OUTEIRO: I THINK WITH REGARD TO A 24 FOUR ABUSE AND NEGLECT,.
JUSTICE ALBIN: I'M TALKING ABOUT SIMPLE ASSAULT. MONICA DO
OUTEIRO: I KNOW YOUR HONOR THAT'S WHAT I WAS GOING TO SAY. WITH REGARD TO SIMPLE
ASSAULT WHERE THE ONLY DEFENSE, THE DEFENSE TO IS IS WHAT IS RECOGNIZED IN
3-EIGHT, THE AMOUNTS, ALL ELEMENTS THERE WOULD NEED TO BE SOME EVIDENCE FOR THE
JUDGE TO FIND IT. RIGHT, IT'S CLEARLY INDICATED. YOU'RE SAYING THAT THIS
IS ENOUGH. THAT WHERE THE DEFENSE COUNSEL IS FRAMEING IT IN TERMS OF TAILORING
SIMPLE ASSAULT TO MATCH 2C 244 AND ARGUING THAT WHAT I'M ASKING FOR IS TO
IMPORT THAT DEFINITION. JUSTICE ALBIN: BECAUSE IT WAS ENOUGH. IF
IT'S ENOUGH FOR A SECOND DEGREE ENDANGERING IF IT'S ENOUGH OF A
DEFENSE TO SECOND DEGREE ENDANGERING HOW COULD IT NOT BE A DEFENSE TO A DISORDERLY
PERSONS OFFENSE SIMPLE ASSAULT F A GRANDMOTHER IS NOT GUILTY OF SECOND
DEGREE ENDANGERING BECAUSE SHE REASONABLY EXERCISED CORPORAL PUNISHMENT, ASSUMING
THAT, HOW COULD SHE POSSIBLY BE CONVICTED OF A SIMPLE ASSAULT?
MONICA DO OUTEIRO: BECAUSE. JUSTICE ALBIN: USING THAT SAME STANDARD.
GO AHEAD. MONICA DO OUTEIRO: BECAUSE IT'S NOT A DEFENSE
TO 24 FOUR. IT'S A FAILURE OF THE STATE TO PROVE AN ELEMENT, THE ELEMENT BEING
THAT THE CHILD WAS ABUSED AND NEGLECTED AND WITHIN THAT DEFINITION OF ABUSE
AND NEGLECT THAT WE BY THE LEGISLATURE'S DIRECTION IMPORT FROM TITLE IX, IT'S ASK
THAT EXCESSIVE CORPORAL PUNISHMENT DOES NOT MAKE A CHILD ABUSE AND NEGLECTED.
I DON'T WANT TO LOOK LINED A JURY'S VERDICT BUT THERE'S A BIG DIFFERENCE BETWEEN
A JURY FINDING THAT ONE INSTANCE OF ABUSE DOES NOT MIKE THAT CHILD AN ABUSED
AND NEGLECTED CHILD AS DEFINED BY TITLE IX VERSUS THE JURY LOOKING AT ONE SPECIFIC
INSTANCE AND DECIDING IF THAT WAS ASSAULTIVE CONDUCT.
JUSTICE PATTERSON: YOU'RE SAYING THAT THERE'S REALLY NO BASIS TO CONCLUDE THAT
THE REASON FOR THE JURY VERDICT OF ACQUITTAL IN THE CASE OF ENDANGERING
WAS THE KA LANGUAGE. MONICA DO OUTEIRO: I MEAN THIS WAS ENOUGH
FOR THE JUDGE. THE DEFENSE PRESENTED DOESN'T ADDRESS ALL FOUR ELEMENTS OF
3-EIGHT BECAUSE IT'S NOT, THE DEFENSE WASN'T ASKING FOR 3-EIGHT. IT WAS ASKING FOR
HIM FOR STATION FROM TITLE IX THROUGH 24-FOUR BECAUSE WHAT THE EVIDENCE
IS IS THE CHILD IS A LIAR AND THE TESTIMONY ABOUT THIS IS KIERA IS A LIAR,
THERE'S TWO WITNESSES CALLED BY THE DEFENSE THAT SAY KIERA IS A LIAR AND
THE FOCUS IS ON THE TEENAGERS EVEN THE EVIDENCE WITH REGARD TO REASONABLENESS THAT'S
PRESENTED BY DEFENSE COUNSEL RELATES TO THE TEENAGERS AND SHOWS WHY IT'S
NOT ENOUGH JUST TO SAY SHE WAS EXERCISING REASONABLE CORPORAL PUNISHMENT BECAUSE
THE THE TESTIMONY WAS IT IT WAS TO PREVENT THEM FROM DRUGS AND GANGS. BUT
THIS IS A THREE YEAR OLD, IT'S TO MAKE THEM DO THEIR HOMEWORK AND CHORES. THIS IS
A THREE-YEAR OLD. CHIEF JUSTICE RABNER: LET'S PARSE THE
ARRANGEMENT YOU'RE ADVANCING RIGHT NOW. YOU DON'T DISPUTE OF COURSE IF DEFENSE
COUNSEL SAID I WANT A 3-EIGHT CHARGE NOTWITHSTANDING THE DEFENSE THEY
PRESENTED IN THIS CASE THEY WOULD HAVE BEEN ENTITLED TO IT, CORRECT?
MONICA DO OUTEIRO: IT WOULD HAVE BEEN A DIFFERENT QUESTION FOR THE TRIAL COURT
AND IT WOULD HAVE BEEN A DIFFERENT QUESTION FOR THE APPELLATE COURT WITH
REGARD IT WHETHER THAT REQUEST IS REASONABLE. CHIEF JUSTICE RABNER:
ARE YOU SAYING THAT THE JUDGE WOULD NOT HAVE HAD TO PROVIDE THAT CHARGE IF
REQUESTED UNDER THE FACT OF THIS CASE? MONICA DO OUTEIRO: I GUESS
MY ANSWER INTUN I'M NOT TRYING TO BE OBTUSE AND NOT ANSWER YOUR QUESTION.
THIS WHY I THINK THIS CASE IS A STANDARD OF REVIEW CASE. BECAUSE I THINK WHAT
I'M PUSHING BACK ON IS THE IDEA THAT ASKING FOR SOMETHING VERY SPECIFIC IS
ENOUGH TO GET SOMETHING ELSE BECAUSE THE STANDARD OF REVIEW IS TO FORCE, THE DIFFERENCE
BETWEEN A REQUEST TO CHARGE AND A NOT A REQUEST TO CHARGE IS TO FORCE COUNSEL
TO MAKE THE APPROPRIATE REQUEST BEFORE THE TRIAL COURT SO THAT THE INSTRUCTIONS
CAN BE GIVEN. CHIEF JUSTICE RABNER: ALL TRUE I'M NOT GOING TO
STOP YOU FROM PRESENTING THE FULSOME NATURE OF YOUR ARGUMENT. MY QUESTION IS HAD
COUNSEL ASKED FOR THIS AT TRIAL WOULD THE JUDGE BY THE CHARGE UNDER THE EVIDENCE
IN THIS CASE? OIZ I THINK A CAUTIOUS JUDGE WOULD HAVE PROVIDED THE INSTRUCTION.
CHIEF JUSTICE RABNER: LET'S DEAL WITH A CAUTIOUS JUDGE REVIEWING
THE VERY FOUR ELEMENTS YOU'VE NICELY LAID OUT IN YOUR BRIEF. THE FOURTH ELEMENT
THAT THE DEFENDANT BELIEVED THE FORCE WAS REASONABLE, THE FORCE WAS NECESSARY
TO FURTHER THIS RESPONSIBILITY WAS REASONABLE IS ESSENTIALLY WHAT COUNSEL ASKED
FOR, NO? MONICA DO OUTEIRO: YES. I THINK, I MEAN COUNSEL ASKED
FOR THE REASONABLENESS, I'M NOT GOING TO DISPUTE THAT COUNSEL'S ARGUMENT,.
CHIEF JUSTICE RABNER: WHY SHOULDN'T A CAUTIOUS JUDGE HAVE PROVIDED THAT
VERY CHARGE? MONICA DO OUTEIRO: BECAUSE THAT INSTRUCTION
AND THE WAY IT WAS ASKED AND FRAMED DOES NOT REPRESENT ALL OF THE ELEMENTS.
REASONABLE BEING THE TOUCHTONE DOESN'T MEAN ALL FOUR LNLTS OF THREE-EIGHT.
CHIEF JUSTICE RABNER: BUT THE HEART OF THIS CHARGE AND TELL ME
IF YOU HAVE A DIFFERENT VIEW APPEARS TO BE THE FURN L. THERE'S NOT DISPUTE THAT THE
DEFENDANT GRANDMOTHER WAS END INTERRUPTED WITH A SPECIAL RESPONSIBILITY
FOR THE CHILDREN, RIGHT? MONICA DO OUTEIRO: UM-HMN.
CHIEF JUSTICE RABNER: THERE'S NOT MUCH DISPUTE THAT A USE OF FORCE WAS FOR THAT
PURPOSE IN EXERCISING THAT RESPONSIBILITY AS THE GUARDIAN, IS THERE?
MONICA DO OUTEIRO: I DON'T KNOW THAT I WOULD INTERPRET PURPOSE THAT BROADLY.
THAT THE PURPOSE IS JUST A GENERIC PARENTAL PURPOSE IN EVERY CASE. TO ME
I LOOK AT IT MORE NARROWLY. I THINK IT'S THE PURPOSE WITH REGARD TO THE SIMPLE ASSAULT.
I THINK THAT'S WHY THIS INSTRUCTION OR THIS DEFENSE IS DIFFERENT THAN WHAT'S,
WHAT DEFENDANT IS ASKING FOR AND WHAT GETS IMPORTED THROUGH 244. I DON'T KNOW THAT
IT'S A GENERAL PARENTAL PURPOSE. I THINK IT'S WHAT WAS THE PURPOSE IN THIS,
WITH REGARD TO THIS ASSAULT AND WITH REGARD TO THIS ASSAULT THE EVIDENCE WE HAVE
IS THAT THE CHILD GOT OUT OF BED AND WANTED A TOY. CHIEF
JUSTICE RABNER: THE THIRD ELEMENT I TAKE IT HAS MINIMAL WEIGHT IN THIS ANALYSIS?
MONICA DO OUTEIRO: THE NECESSITY. CHIEF JUSTICE
RABNER: NECESSARY TO FURTHER THE RESPONSIBILITY AND NOT DEADLY FORCE.
MONICA DO OUTEIRO: I THINK THE NOT DEADLY FORCE COMES FROM SUBSECTION
C. I THINK NECESSITY IS, IT'S LIKE THE TOUCHTONE OF THIS DEFENSE.
REASONABLENESS, YES, BUT NECESSITY I THINK IS JUST AS IMPORTANT.
CHIEF JUSTICE RABNER: YOUR FEELING IS IF THIS CHARGE HAD TO BE GIVEN IT COULD ONLY
BE GIVEN IN ITS ENTIRETY, NOT WHAT DEFENSE COUNSEL HAD REQUEST FOR UNDER
THE FACTS HERE. MONICA DO OUTEIRO: YES. I THINK IF THE DEFENSE
WAS JUST REASONABLENESS THAT'S WHAT 3-EIGHT WOULD SAY. BUT IT DOESN'T. IT TALKS
ABOUT NECESSITY OF PURPOSE AND HERE. JUSTICE ALBIN: WHAT DOES
NECESSITY MEAN? DO YOU EVER REMEMBER THERE'S A CONSTITUTIONAL CONSTRUCT
OVER A PARENTS' RIGHT TO RAISE A CHILD. SO THE QUESTION IN TERSE OF DISCIPLINE
OF A CHILD, ARE YOU SAYING THAT UNDER OUR CONSTITUTION THAT A PARENT CAN ONLY
EXERCISE DISCIPLINE FROM NECESSITY? IS THAT WHAT YOU'RE SAYING.
MONICA DO OUTEIRO: I THINK THAT THE FORCE USED THE WAY I READ THREE-EIGHT, THE AMOUNT
OF FORCE USED HAS TO BE NECESSARY TO EFFECTUATE THAT PARENTAL PURPOSE AND
IT CAN'T BE MORE. JUSTICE ALBIN: EVERY PARENT WILL WARRANT TO
KNOW WHETHER OR NOT THEY ARE VIOLATING OUR SIMPLE ASSAULT STATUTE IF THEY ARE USING
CORPORAL PUNISHMENT THAT DOESN'T MEET A STANDARD OF NECESSITY AND YOUR ANSWER
TO ALL THOSE PARENTS IS? MONICA DO OUTEIRO: YES, YES. I MEAN I
THINK THIS CASE, YOU CAN EASILY SEE WHERE THE LINES ARE SPECIFICALLY WITH
THIS CASE THE QUESTION THAT THE COURT HAS TO ASK IS WAS IT ENOUGH FOR THE JURY
TO HAVE TO MAKE THE DECISION OR NOT, THAT'S THE CLEARLY INDICATED STANDARD.
BUT YES WHAT YOU HAVE IS A CHILD, A THREE-YEAR OLD, A TODDLER THAT STRUCK 12
TIMES WITH A BELT,. JUSTICE ALBIN: FORGET ABOUT A THEY'RE YEAR
OLD. MONICA DO OUTEIRO: THAT IS THE FACTS OF THIS
CASE. JUSTICE ALBIN: I'M TRYING TO UNDERSTANDS YOUR USE OF THE
TERM NECESSITY. A PARENT SLAPS A 15-YEAR OLD CHILD AND LET'S SAY IT WASN'T NECESSARY
AND IT CERTAINLY ISN'T GOVERNED BY NECESSITY. THE PARENT DID IT BECAUSE
THE CHILD DIDN'T PERFORM SOME FUNCTION AROUND THE HOUSE. IS THE PARENT GUILTY
OF SIMPLE ASSAULT? MONICA DO OUTEIRO: I THINK, AGAIN, I THINK
YOU NEED ALL OF THE FACTS SURROUNDING IT AND I THINK THAT MIGHT BE A SITUATION
WHERE IT PRESENTS A JURY QUESTION, A QUESTION FOR THE JURY. I MEAN UNDER THESE
FACTS. JUSTICE ALBIN: SO YOU'RE SAYING THAT'S CHARGEABLE
THAT A PARENT SHOULD KNOW THAT SHE OR SHE CAN BE BROUGHT TO MUNICIPAL COURT FOR THAT?
MONICA DO OUTEIRO: I FORGET WHO ASKED BUT THE QUESTION WAS ASKED
OF MY ADVERSARY WHETHER SIMPLE ASSAULT IS OFTEN CHARGED OR WHETHER IT'S OFTEN,
I MEAN IF THIS IS NOT, THIS IS NOT A FACT PATTERN THAT HAPPENS OFTEN.
JUSTICE ALBIN: REMEMBER, ALL YOU NEED FOR AN ASSAULT IS PAIN.
THAT COULD BE A MILD SLAP AND OUCH AND THAT'S IT YOU HAVE AN ASSAULT. SO, FOR
INSTANCE, IF YOU HAVE A FIVE YEAR OLD IN A STORE AND HE DROPS A CONE, THE
PARENT SLAPS THE KID ON THE HAND AND HE SAYS OUCH, THAT'S OBVIOUSLY GOING TO BE
NOT EXCESSIVE CORPORAL PUNISHMENT, IT'S NOT GOING TO BE A ASSAULT BUT IF
A STRANGER DOES THE SAME THING THAT'S AN ASSAULT, CORRECT? MONICA
DO OUTEIRO: YES. YES. I MEAN, YES, BUT I DON'T KNOW THAT THAT ADDRESSES THE FACT
PATTERN HERE. BECAUSE, AGAIN, THIS IS ALL UNDER THE FRAMEWORK OF WHETHER OR NOT
THIS WAS SO CLEARLY AND DO THESE FACTS SO CLEARLY INDICATED.
JUSTICE ALBIN: SO THAT'S THE NEXT QUESTION I WANT TO ASK YOU.
MONICA DO OUTEIRO: OKAY. JUSTICE ALBIN: DURING THE COURSE OF A
TRIAL WHEN AN ATTORNEY SAYS, YOUR HONOR, THAT IS NOT AN EXCITED UTTERANCE, THAT'S
NOT AN EXCITED UTTERANCE. HAS THE ATTORNEY SUFFICIENTLY PRESENTED THE RECORD
WITHOUT CITING EITHER THE EVIDENCE RULE OR THE STATUTE FOR EXCITED UTTERANCE?
IS THAT GOING TO PROTECT THE RECORD? MONICA DO OUTEIRO: WELL
I THINK,. JUSTICE ALBIN: OR IS HE GOING TO HAVE TO SAY THAT'S
N.J.R.E., GO AHEAD. MONICA DO OUTEIRO: HE'S USING THE TITLE OF
THE RULE. BUT THAT'S NOT WHAT HAPPENED HERE EITHER. THE TITLE OF THIS
STATUTE IS USE OF FORCE BY PERSONS OF A SPECIAL RESPONSIBILITIES FOR THE CARE AND
DISCIPLINE FOR A CHILD. THAT'S NOT STATED. A STATUTORY CITATION IS NOT
STATED AND ALL OF THE ELEMENTS OF THE DEFENSE ARE NOT STATED AND IT'S IN THE FRAMEWORK
OF DEFENSE COUNSEL SAYING I'M ASKING FOR A TAILORED CHARGE UNDER KA. I
MEAN THERE'S NOT A SINGLE THING OTHER THAN REASONABLENESS THAT IS IS SUPPOSED TO HAVE
TIPPED OFF THIS JUDGE THAT WHAT WAS REQUESTS IS A 3-EIGHT. AGAIN THIS IS
WHY I GO BACK TO THE PURPOSE OF THESE DIFFERENT STANDARDS IS TO DIRECT COUNSEL TO
CLEARLY PRESENT THEIR ISSUE TO THE TRIAL COURT. JUSTICE
PATTERSON: IS THERE A DIFFERENCE BETWEEN ASKING FOR A CHARGE ON AN ELEMENT OF THE
OFFENSE, WHICH AS I UNDERSTAND IT, THAT'S WHERE KA FIT IN IN ENDANGERING,
AND ASKING FOR A CHARGE ON AN AFFIRMATIVE DEFENSE? DO YOU SEE WHAT I'M SAYING.
MONICA DO OUTEIRO: I DO. JUSTICE PATTERSON:
WHAT I'M SUGGESTING IS THOSE ARE TWO DISTINCT CONCEPTS AS TO THE DIFFERENT
BURDENS OF PROOF AND THE TWO TYPES OF CHARGES ARE DIFFERENT BECAUSE THEY ARE DEALING
ONE HAND THE STATE'S BURDEN AND, ON THE OTHER HAND, THE DEFENDANT'S BURDEN OF
THE OFFENSE. SHOULD A TRIAL COURT BE EXPECTED WERE THERE'S A REQUEST AS TO ELEMENT
TWO OF THE ELEMENTS FOR THIS OFFENSE, I'D LIKE THE FOLLOWING CHARGE, SHOULD THE
TRIAL COURT BE EXPECTED TO BE THINKING ABOUT DEFENSES? MONICA
DO OUTEIRO: I THINK TO THE, I DON'T KNOW THAT IT MAKES IT, THAT ONE REQUEST MAKES
THE OTHER ALSO REQUESTED. I THINK THAT'S WHAT THE. JUSTICE
PATTERSON: THAT'S MY POINT. MONICA DO OUTEIRO: I DON'T THINK SO.
I DON'T THINK SO. BECAUSE I THINK THE REALITY IS THAT'S WHY THE CLEARLY
INDICATED, UNDER THE CLEARLY INDICATED STANDARD THE TRIAL COURT IS SUPPOSED TO SAY
WHAT DO THESE FACTS TELL ME, ARE THESE FACTS CLEARLY INDICATING ELEMENTS
OF A DEFENSE. THAT WOULD BE THERE BUT I DON'T KNOW,. JUSTICE
PATTERSON: AS A PRACTICE IN CRIMINAL CASES IN THE PRETRIAL PROCESS DOES DEFENSE
COUNSEL HAVE AN OBLIGATION TO NAME ANY DEFENSES THAT THEY WILL BE ASSERTING?
MONICA DO OUTEIRO: YEAH. THERE'S SOME OBLIGATIONS UNDER OUR
STATUTES AND OUR COURT RULES. JUSTICE PATTERSON: SO THERE'S NOTICES
OF ALIBI AND THAT SORT OF THING BUT NOT NORMAL PRACTICE, PRETRIAL,.
MONICA DO OUTEIRO: AND THERE'S SPOEFK ONES LIKE INSANITY AND OTHER DEFENSES
THAT THERE IS A REQUIREMENT OF NOTICE. JUSTICE PATTERSON:
BUT AS TO THIS IS THERE A REQUIREMENT THAT PRETRIAL THE DEFENSE COUNSEL
ARTICULATE TO THE COURT THAT HE WAS LOOKING FOR THIS DEFENSE?
MONICA DO OUTEIRO: THERE'S ABSOLUTELY NO LAW ON THIS STATUTE. SO I DON'T KNOW
THAT THERE'S ANYTHING, BUT I WOULD JUST SAY -- AND THAT ALSO DIDN'T HAPPEN
HERE. LIKE I'M NOT ASKING FOR DEFENSE COUNSEL TO BE HELD TO LIKE INSANE AMOUNTS
OF PRECISION, YOUR HONOR. I'M NOT ASKING IF DEFENSE COUNSEL SAID 3-NINE INSTEAD
OF 3-EIGHT THAT THAT WOULDN'T HAVE GOTTEN HIM IN THE BALLPARK. BUT WHAT I'M SAYING IS
WHEN WHAT YOU ASK FOR IS WHAT YOU THE ATTORNEY ASKED FOR HERE AND THAT NO
ATTORNEY, NO JUDGE SAW IT AS 3-EIGHT UNTIL THERE WAS A FOOTNOTE IN THE DISSENT
THAT SAYS IT MAY BE THAT, NOT EVEN THAT IT IS, THE DISSENT'S FOOT NOTE IS THAT
IT MAY BE THAT THE DEFENSE TO THIS IS 3-EIGHT. I'M HARD-PRESSED TO SAY THAT WHAT
HAPPENED QUESTION LOW WAS ENOUGH THAT THE TRIAL COURT, THAT JUDGE ENGLISH WAS
OBLIGATED UNDER A HIGHER STANDARD OF REVIEW ON APPEAL TO HAVE PROVIDED THIS
INSTRUCTION. I THINK THAT'S MY ARGUMENT. CHIEF JUSTICE RABNER:
PLEASE GO AHEAD. JUSTICE PIERRE-LOUIS: I THINK WE'VE COVERED
THE FACT THAT DEFENSE COUNSEL OBVIOUSLY DID NOT MENTION 3-EIGHT. BUT IN LOOKING AT
THE TRANSCRIPT IT'S CLEAR WHAT HE WAS REQUESTING IN THE CONTEXT OF THIS
PARTICULAR CASE AND ALSO EVEN THE COURT AND THE STATE SAID, WELL, IT'S ALREADY,
THE JURY KIND OF ALREADY UNDERSTANDS THAT FROM THE PREVIOUS CHARGE. SO EVEN,
EVEN THE PROSECUTOR INDICATED, WELL, THAT THE BELIEF THAT THE PREVIOUS CHARGE
GIVEN FOR THE CHILD ENDANGERMENT CHARGE WOULD APPLY TO THE SIMPLE ASSAULT.
THIS ISSUE WAS BEFORE THE COURT. IT'S NOT AS THOUGH IT WAS COMPLETELY, IT WAS
NOWHERE TO BE FOUND AND NO ONE THOUGHT ABOUT THE FACT THAT THAT IN THE CONTEXT OF
A CHILD OR A PARENT AUTHORITY A CARE GAVE VERDICT THAT SIMPLE ASSAULT THERE
NEEDED TO BE SOME EXPLANATION TO THE JURY THAT REASONABLE DISCIPLINE DOESN'T RISE
TO THE LEVEL OF SIMPLE ASSAULT. MONICA DO OUTEIRO: I THINK WHAT
WAS BEFORE, AND, I THIS IS A FACT WHAT WAS BEFORE THE TRIAL COURT, THE CONTEXT
WAS A TAILORED CHARGE TO INSTRUCT THE JURY THAT KA'S LANGUAGE, THE TITLE IX LONG
THAT APPLIED TO DEFINE ABUSE AND NEGLECT SHOULD BE INSTRUCT WITH REGARD
TO 12-ONE. AGAIN WHAT WAS QUESTIONS WAS NOT IN ANY WAY ALL ELEMENTS OF 3-EIGHT.
I MEAN WHAT WAS ASKED FOR REASONABLENESS IF IT'S NOT REASONABLE THEN IT'S
NOT SOOINL. BUT 3-EIGHT TELLS US IT HAS TO BE BREEBL IT HAS TO HAVE A PURPOSE
AND IT HAS TO HAVE A FESS TEA OR THE USE OF FORCE HAS TO BE NECESSARY TO
EFFECTUATE THAT PURPOSE. SO AGAIN I'M NOT TRYING TO BE DIFFICULT. WHAT WAS REQUESTED
DID NOT PUT JUDGE ENGLISH ON NOTICE THAT THAT WAS WHAT WAS BEING REQUESTED
SO THAT THE STANDARD OF REVIEW ON APPEAL IS RATIONALLY, LIKE A RATIONAL BASIS STIFF
CLEARLY INDICATED. JUSTICE PATTERSON: AS A GENERAL
PROPOSITION, I JUST CAN'T THINK OF AN EXAMPLE OF THIS, DO THE RATIONAL BASIS AND
CLEARLY INDICATED STANDARDS APPLY TO DEFENSES? I MEAN THE JUMPING OFF THE PAGE
ASPECT OF IT REALLY YOU LOOK AT THE STATE'S EVIDENCE, RIGHT, AND SEE IF
THE EVIDENCE JUMPS OFF THE PAGE IN THE CLEARLY INDICATED STANDARD. A DEFENSE IS
A WHOLE DIFFERENT ANIMAL IS IT NOT? MONICA DO OUTEIRO: IT IS
AND THERE'S A BODY OF CASE LAW THAT TALKS ABOUT A DEFENDANT, THE FACTS CAN BE
THERE. I MEAN IT'S IN I THINK {CASE CITED} WITH REGARD TO DIMINISHED CAPACITY
AND INSANITY. A DEFENDANT CAN SAY YEAH, I UNDERSTAND THAT YOU MIGHT COUNSEL
AND THE COURT THINK THIS DEFENSE APPLIES. AND I DON'T WANT TO RAISE AN INSANITY
DEFENSE AND, THEREFORE, THE INSTRUCTION CANNOT BE GIVEN. JUSTICE
PATTERSON: THAT IS AN EXAMPLE I SHOULD HAVE THOUGHT OF. BECAUSE I WROTE THAT {CASE
CITED} THAT'S SORT OF THE ISSUE IS WHETHER THERE WAS EVIDENCE THAT WOULD
HAVE SUPPORTED THE INSANITY DEFENSE THAT REQUIRED THE COURT TO GIVE IT THE COURT
DECIDED THAT IT WAS THERE AND OBVIOUSLY WE REVERSED THAT DETERMINATION.
MONICA DO OUTEIRO: I'M NOT, THAT WAS THE FIRST EXAMPLE THAT
CAME TO MY MIND BECAUSE {CASE CITED} WAS A MONMOUTH COUNTY ALTHOUGH I DIDN'T ARGUE
IT. I WAS GOING TO SAY INTOXICATION MIGHT BE ANOTHER ONE WHERE A JUDGE
MIGHT HAVE AN OBLIGATION TO INSTRUCT EVEN IT WAS NOT REQUESTED BECAUSE IF THE EVIDENCE
WAS HAD THE DEFENDANT BEEN DRINKING THAT ENTIRE DAY BEFOREHAND I THINK THAT
MIGHT BE A SITUATION. JUSTICE ALBIN: YEAH, WE HAVE A BODY OF LAW
SAYING THAT. I WANT TO GO BACK TO THE EXAMPLE THAT THE CHIEF JUSTICE GAVE
EARLY ON AND THERE WAS A CHARGE OF JUST SIMPLE ASSAULT. AND THE FACTS INVOLVE
A PARENT STRIKING A CHILD OVER A QUESTION OF DISCIPLINE. WITHOUT REQUESTING
THE 2C 38 CHARGE WORKS IT BE POSSIBLE FOR THE JUDGE TO TRY THE CASE WITHOUT
IMPORTING THAT WHEN THE DEFENSE -- AND LET'S SAY IT'S, THE PERSON IS SELF-REPRESENTED,
THE DEFENSE IS I WAS JUST DISCIPLINING MY SON WHEN I SMACKED HIM. COULD THE
JUDGE PROCEED JUST WITH YOU HIT THE KID, THAT'S IT, YOU HIT THE KID AND HE SAID
OUCH, PAIN, YOU'RE GUILTY. COULD THE JUDGE PROCEED WITHOUT IMPORTING NECESSARILY
2C 38? WOULD IT NOT BE SO CLEARLY INDICATED, JUMPING OFF THE PAGE, WHAT
THE JUDGE SHOULD DO. MONICA DO OUTEIRO: I THINK THE JUDGE AS THE
TRIER OF FACT IN LAW WOULD SAY THESE FACTS CLEARLY INDICATE A 3-EIGHT DEFENSE I'M
GOING TO FIND IT. JUSTICE ALBIN: WHAT'S THE DIFFERENCE IF HE IS
THE TRIER OF FACT AND THE TRIER OF LAW OR IF HE IS HANDLING THE LAW AND SUPPOSED
TO PROPERLY INSTRUCT THE JURY ON THE LAW? WHOEVER THE TRIER OF FACT IS SHOULD
KNOW WHAT THE LAW IS, WHETHER IT'S A MUNICIPAL COURT JUDGE OR A JURY, DO
YOU AGREE? MONICA DO OUTEIRO: I THINK THAT'S WHAT THE CLEARLY
INDICATED STANDARD IS. IF JUDGE ENGLISH FOUND IF THERE WERE FACTS THAT WOULD HAVE
ALLOWED HIM TO FIND THAT IT WAS CLEARLY INDICATED HE WAS AN OBLIGATION TO GIVE
IT. OUR ARGUMENT IS THESE FACTS DON'T CLEARLY INDICATE IT BECAUSE THERE'S NOT
ANY EVIDENCE THAT THE THREE, OR THAT THERE WAS A PARENTAL NECESSITY TO HIT THE
THREE-YEAR OLD 12 TIMES BECAUSE SHE GOT OUT OF BED. JUSTICE ALBIN:
THEY WERE SAYING THAT THEY DIDN'T KNOW THE CHILD WAS STRUCK 12 TIMES WHETHER THE
BELT WAS HITTING THE BED AND THE KID WAS SAYING OUCH THOSE ARE ALL FACTS
TO BE DECIDED BY THE JURY. MONICA DO OUTEIRO: THERE WERE THE OTHER
FACTS THAT WERE ARGUED BUT THAT IS NOT A THREE EIGHT DEFENSE. THAT'S YOU
DIDN'T ESTABLISH THAT THE CHILD WAS STRUCK. THAT'S A YOU DIDN'T ESTABLISH THE ELEMENTS
OF SIMPLE ASSAULT. IF THE BET WAS HITTING THE BED AND NOT THE CHILD.
JUSTICE ALBIN: BUT NOT STRUCK IN THE SAME FASHION AS THE OLDER
CHILD WHO WAS TESTIFYING. THAT WAS ALL FOR THE JURY TO DECIDE. AND WE DON'T KNOW
PRECISELY WHAT FACTS THEY FOUND BECAUSE THEY FOUND THREE NOT GUILTY SIMPLE
ASSAULTS AND THEY FOUND ALL THE ENDANGERING NOT GUILTY AND SO THERE'S OBVIOUSLY
PROBABLE SOME CREDIBILITY ISSUES THERE, NO? MONICA DO OUTEIRO:
I THINK THAT GETS BACK WE DON'T KNOW BECAUSE WE DON'T LOOK BEHIND JURY
VERDICTS. I DON'T KNOW THAT THE EXAM OF THE MUNICIPAL COURT JUDGE VERSUS THE TRIAL
COURT JUDGE IS HELPFUL BECAUSE, AGAIN, IT'S WHETHER IF THE FACTS WERE CLEARLY
INDICATED JUDGE ENGLISH WOULD HAVE A REQUIREMENT TO GIVE THEM. WHAT DEFENSE COUNSEL
IS ARGUING IS THAT, AND I THINK WHAT SOME OF THE QUESTIONS YOUR HONOR HAS BEEN
ASKING IS WHETHER OR NOT WHAT HAPPENED HERE, WHAT WAS REQUESTED HERE WAS A REQUEST
THAT SHOULD HAVE, WAS A REQUEST FOR A THREE-EIGHT MAKING IT THE STANDARD THAT
THIS COURT HAS TO APPLY THE STANDARD THAT THE COURT BELOW HAS IT APPLY.
WAS IT REASONABLY REQUESTED VERSUS CLEARLY INDICATED. AND SO THAT'S THE STATE'S
POSITION THAT THIS CASE RISES AND FALLS THERE. BECAUSE IT WAS NOT REQUESTED
AND THE FACTS DO NOT, THE ONLY FACTS THAT WE HAVE DO NOT CLEARLY INDICATE A NECESSITY
IN THIS CASE. BECAUSE IF YOU DON'T BELIEVE KIERA THEN WE HAVE NO FACTS
ABOUT WHY THIS, I SAID 12-YEAR OLD, WHY THIS THREE-YEAR OLD WAS HIT WITH A BELT.
BECAUSE ALL OF THE OTHER TESTIMONY WAS ABOUT THE TEENAGERS, ABOUT HOW THEY
WERE; IS THAT SOING THEIR GRANDMOTHER HOW THEY WERE DOING DRUGS. NONE OF THAT
RELATES TO THE THREE-YEAR OLD AND WHY IT WAS NECESSARY TO STRIKE HER 12 TIMES
WITH THE BELT. JUSTICE ALBIN: WITHOUT THE KA LANGUAGE OR THE
2C THREE EIGHT LANGUAGE, WITHOUT THAT, IT'S A SIMPLE ASSAULT IF THE JURY BELIEVED
THAT THE GRANDMOTHER STRUCK THE CHILD ONCE, THAT WOULD HAVE BEEN A SIMPLE
ASSAULT, ONCE WITHOUT THAT DEFENSE. DO YOU AGREE? MONICA DO
OUTEIRO: I THINK WHAT,. JUSTICE ALBIN: DO YOU AGREE WITH THAT?
MONICA DO OUTEIRO: BUT THAT'S NOT,. JUSTICE ALBIN:
DO YOU AGREE. MONICA DO OUTEIRO: I DON'T KNOW WERE YOU'RE
LOOKING AT A JUDGE. JUSTICE ALBIN: I'VE ASKED YOU A QUESTION.
CAN YOU ANSWER MY QUESTION. MONICA DO OUTEIRO: I CAN'T ANSWER YOUR
QUESTION THE WAY YOU WANT ME TO. JUSTICE ALBIN: THE GRANDMOTHER,
SHE'S THE BABYSIT SORRY, THE CUSTODIAN, STRIKES THE CHILD ONCE IS THAT AN
ASSAULT? MONICA DO OUTEIRO: NO BUT THE WAY YOU FRIEND THAT
QUESTION, YOUR HONOR, WAS THAT HERE WHAT IF THIS JURY DIDN'T BELIEVE DESPITE HEARING
TEN BELIEVE IT HAPPENED 12 TIMES, ONLY BELIEVED THAT IT'S ONE. BUT WHEN
WE'RE LOOKING AT THE CLEARLY INDICATED STANDARD THE JUDGE HAS TO FIND THAT THE
FACTS AS PRESENTED TO HIM CLEARLY INDICATE ALL ELEMENTS OF THE OFFENSE SO I DON'T
KNOW THAT JUDGE LENGTH WAS REQUIRED, HE'S NOT REQUIRED TO METICULOUSLY SIFT THROUGH THE
RECORDS. IS GOING TO FIND IT ONLY HAPPENED ONCE IN ORDER TO GIVE IT A
DEFENSE THAT'S NOT BEEN KWERTD. THE JUDGE HAS TO APPLY THE CLEARLY INDICATED STANDARD
TO ALL ELEMENTS OF OFFENSE AND TO THE FACTS THAT WERE PRESENTED BEFORE HIM.
I DON'T KNOW THAT WE'RE EXPECTING TRIAL COURTS TO THINK ABOUT ALL PERMUTATIONS.
I DON'T THINK OUR LAW REQUIRES IT. CHIEF JUSTICE RABNER:
MAY I BRING YOU BACK TO THE QUESTION OF SIMPLE ASSAULT IN GENERAL. IT WAS
TREATED, IT WAS TREAT AS A LESSER INCLUDED OFFENSE AT THE TRIAL COURT LEVEL. WAS THAT
CORRECT? MONICA DO OUTEIRO: IT WAS WHAT WAS,. CHIEF
JUSTICE RABNER: JUSTICE ALBIN: WAS THAT LESSER INCLUDED
OFFENSE. MONICA DO OUTEIRO: I DON'T THINK IT'S ACCURATE WHEN
DEFENSE COUNSEL SAID THAT IT WAS LIKE AGREED IT BELOW. IT WAS REQUESTED. THE
WAY I READ THE RECORD IN THIS IS THAT IT WAS SPECIFICALLY REQUESTED AS A
LESSER INCLUDED BY DEFENSE COUNSEL OR LESSER RELATED. CHIEF JUSTICE
RABNER: ANY OTHER QUESTIONS? ANYTHING YOU'D LIKE TO ADD. MONICA
DO OUTEIRO: THANK YOU VERY MUCH YOUR HONOR. THANK YOU TO THE COURT FOR YOUR TIME.
CHIEF JUSTICE RABNER: THANK YOU BOTH COUNSEL FOR HELPFUL
ARGUMENTS. WE'LL TAKE THE MATTER UNDER ADVISEMENT. ALISON
GIFFORD: YOUR HONOR COULD I HAVE A COUPLE MINUTES FOR REBUTTAL?
CHIEF JUSTICE RABNER: I'D LIKE TO QUICKLY ADDRESS JUSTICE PATTERSON'S CONCERN ABOUT
NOTICE. SIMPLE ASSAULT DIDN'T COME UP UNTIL THE VERY ENDS OF THE CASE.
SO EVEN IF NOTICE WAS REQUIRED IT COULDN'T HAVE HAPPENED IN THIS CASE. BUT AS SOON AS
SIMPLE ASSAULT CAME UP THE DEFENSE COUNSEL HERE REQUESTED THAT REASONABLE
CORPORAL PUNISHMENT AS A DEFENSE BE GIVEN AND I'D LIKE TO REITERATE AGAIN THAT
SUBSTANTIVELY WHEN WE LOOK AT THE LANGUAGE OF KA WE'RE SAYING THE GENERAL
PROPOSITION IS THAT A PARENT MAY INFLICT MODERATE CORRECTIONS SUCH AS REASONABLE
UNDER THE CIRCUMSTANCES OF THE CASE AND THIS IS A TOTALITY OF THE CIRCUMSTANCES
ANALYSIS AS WE'VE SEEN IN THE FAMILY LAW CONTEXT THAT CAPTURES THOSE FOUR
ELEMENTS THAT ARE ARTICULATED IN THE 2C 3-EIGHT DEFENSE. AND AT ITS CORE HERE THE
QUESTION IS REALLY JUST WHETHER DEFENSE COUNSEL'S REQUEST WAS SUFFICIENT
SUCH THAT THE STANDARD IS RATIONAL BASIS OR CLEARLY INDICATED AND ALA'S PISS IS
CERTAINLY THIS WAS REQUESTED ENOUGH THAT THE STANDARD OF REVIEW IS A RATIONAL
BASIS STANDARDS. BUT EVEN UNDER A CLEARLY INDICATED STANDARD THERE WAS ENOUGH
EVIDENCE HERE THAT THE COURT HAD INSTRUCT THE JURY THAT REASONABLE CORPORAL
PUNISHMENT IS NOT A SIMPLE ASSAULT AND BECAUSE THAT CHARGE HERE WAS NOT GIVEN WE'RE
LOOKING AT A HARMLESS ERROR STANDARD AND WAS THIS ERROR HARMLESS. THE ANSWER
TO THAT QUESTION IS NO BECAUSE IT COULD HAVE IMPACTED JURY DELIBERATIONS AND HAD
THE JURY BEEN PROPERLY INSTRUCTED IT COULD HAVE ACQUITTED ALA OF SIMPLE ASSAULT.
THANK YOU, YOUR HONORS. CHIEF JUSTICE RABNER: THANK YOU.