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State v. Dunbar

Decided: February 5, 1976.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GENE DUNBAR, DEFENDANT-APPELLANT



For affirmance -- Chief Justice Hughes, Justices Mountain, Sullivan, Clifford and Schreiber and Judge Conford. For reversal -- Justice Pashman. The opinion of the Court was delivered by Sullivan, J. Pashman, J. (dissenting).

Sullivan

Defendant was found guilty of second degree murder in the shotgun slaying of the husband of a girl he was dating. N.J.S.A. 2A:113-1 and -2. He was sentenced to a term of 15-20 years in New Jersey State Prison for this offense. He was also found guilty of possession of a shotgun without first having obtained a firearms purchaser identification card, a violation of N.J.S.A. 2A:151-41(b). He was sentenced to 1-2 years in New Jersey State Prison on this offense, the sentence to run concurrently to the sentence for murder. The Appellate Division upheld his conviction and sentence. This Court granted certification, 68 N.J. 147 (1975), to consider only the claim of excessive sentence. We affirm.

Defendant, then 19 years of age, was a high school classmate of a girl who was married but estranged from her husband. About a week prior to the tragic event hereinafter described, defendant attended a graduation party given by the girl. A romance apparently blossomed and the two began to see each other on a daily basis despite warnings by the husband that he would not tolerate such conduct. On two occasions the husband actually assaulted defendant when he found defendant in his wife's company. Instead of avoiding an inevitable confrontation, defendant made another date with the girl and armed himself with a sawed-off shotgun which defendant testified was for his own protection. As defendant and the girl were leaving the apartment building where she lived, using the rear entrance, the husband intercepted them. The girl ran back into the building to get help. In the meantime, the husband approached defendant who took the gun out from underneath his clothing, pointed it at the husband and warned him to stay back. When the husband did not stop defendant fired a warning shot towards the ground. The husband kept coming and defendant fired a second shot which struck decedent in the chest. Defendant said that he intended to shoot the man in the leg, but that

as he fired he tripped over a jacket he had dropped and was actually falling down when the second shot was fired.

The trial judge called the killing a cold-blooded murder. While we do not subscribe to this characterization, it is clear that defendant persisted in a course of conduct with a married woman which defendant knew would result in a confrontation with her husband. He prepared himself for that confrontation by arming himself with a sawed-off shotgun. The tragic result was the killing of the husband.

Defendant was a 19-year-old student at the time, with no prior record of any kind. The sentencing judge recognized this but felt that defendant had to be punished for taking a man's life. In the circumstances, it has not been shown that the sentence imposed was manifestly excessive or unduly punitive.

We were informed at the oral argument of this appeal that defendant has been administratively transferred to the prison farm at Leesburg, a minimum security facility, to serve his sentence, and that he will become eligible for parole in October 1976.

Affirmed.

PASHMAN, J. (dissenting). Defendant Gene Dunbar was convicted for the murder of one Basil Davies in Atlantic City and for possession of a firearm without a purchaser identification card. Both charges arose from the same June 24, 1972 incident. As a result of his convictions, he received concurrent terms of 15 to 20 years for the second degree murder conviction and 1 to 2 years for the possession charge. In an unreported opinion which considered a number of issues, the Appellate Division affirmed the conviction and concluded that the sentence was not "manifestly excessive." This Court granted defendant's petition for certification to consider only the excessive sentence claim. 68 N.J. 147 (1975). Looking to this limited issue, we must consider whether the imposition of the joint sentences constituted an "abuse of discretion" on

the part of the trial judge. State v. Tyson, 43 N.J. 411, 417 (1964), cert. den. 380 U.S. 987, 85 S. Ct. 1359, 14 L. Ed. 2d 279 (1965); see State v. Allen, 104 N.J. Super. 187, 189-90 (App. Div. 1969), aff'd 54 N.J. 311 (1969).

The murder of Basil Davies followed a series of related incidents primarily involving Davies, his wife Marjorie Davies and the defendant. At the time of the murder, Davies had been separated from his wife for approximately three weeks and defendant had been dating her for about 10 days. Defendant had known Marjorie Davies in high school; his association with the victim ...


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