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State v. Whitehead

Decided: June 20, 1979.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL WHITEHEAD, DEFENDANT-APPELLANT



On certification to the Superior Court, Law Division, whose opinion is reported at 159 N.J. Super. 433 (1978).

For affirmance -- Chief Justice Hughes and Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For reversal -- None. The opinion of the court was delivered by Sullivan, J.

Sullivan

Defendant was convicted by a jury verdict of second degree murder while armed. At the time of sentencing, defense counsel objected to the use of sentencing guidelines formulated for Essex County. However, the trial judge stated that the material in the guidelines was informational only and not binding on the sentencing judge in any sense. Defendant was then sentenced to a term in State Prison aggregating not less than 11 nor more than 22 years.

After an appeal had been filed, a consent order was entered by the Appellate Division remanding the matter to the trial court for the limited purpose of enlarging the record with regard to the sentencing procedures employed by the trial court. Jurisdiction was retained by the Appellate Division. The trial judge held a lengthy hearing on the subject of the remand, at the conclusion of which he filed a formal opinion, reported in 159 N.J. Super. 433 (Law Div. 1978). This Court then granted direct certification of the entire pending appeal. 77 N.J. 498 (1978). We affirm.

The salient facts of the homicide are as follows:

The victim, Kim Washington, and his friend, Ernest Hite, had driven to a luncheonette in Newark about 1:00 A.M. on a Saturday morning. A crowd varying in size from 15 to 40 persons was gathered in and around the luncheonette. Hite, who was driving, double-parked the car in front of the store and he and Washington went inside. While there, they met

Syvellus Booker, a half-brother of Washington, and the three then left. On the way back to the car Washington exchanged words with someone on the sidewalk. That person followed him to the car and, as Washington got in the passenger seat and tried to close the car door, the other held on to the door, reached in with a gun in his hand and shot Washington in the head. Hite, who was in the driver's seat at the time, identified defendant as the assailant and described the gun used as having a white handle. Booker, who was standing by the car when the shooting took place and who knew defendant, also identified defendant as the person who had accosted Washington on the sidewalk, followed him to the car and then shot him with a white-handled gun. Another witness testified that a few hours before the shooting he had seen defendant rob three persons while holding a pistol with a white handle.

Following the shooting, defendant fled to North Carolina and Virginia where he remained for about six weeks. He then returned and surrendered to the police. At trial defendant testified in his own defense and admitted his presence at the scene but said he was not near the car when the shooting took place. He identified a person named Dennis Knox as the gunman. He maintained that he had fled, not because of guilt, but from fear of retaliation by friends of Washington. He also said that he was afraid of Dennis Knox with whom he would have to deal. The following exchange then took place on cross-examination of defendant by the prosecutor.

Q. You have to deal with Dennis Knox because you just said under oath --

A. I told that Dennis Knox did the shooting, and if you want me to sign a paper I will sign a paper saying Dennis Knox did the shooting.

Q. What did you say about signing a paper?

A. If you want me to sign, I will sign saying ...


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