On appeal from Superior Court, Law Division, Essex County.
Antell, J. H. Coleman and Simpson. The opinion of the court was delivered by, Antell, P.J.A.D.
After a trial by jury defendant was convicted of aggravated assault, N.J.S.A. 2C:12-1b(1)(2), and murder, N.J.S.A. 2C:11-3. The victim of both crimes was Josephine Branch, the assault occurring on July 17, 1982 and the murder on July 18, 1982. On the assault conviction, defendant was sentenced to a custodial term of ten years with parole ineligibility for five years and ordered to pay a penalty of $500. He was sentenced to a consecutive thirty year custodial term on the murder conviction with parole ineligibility for fifteen years and also ordered to pay an additional penalty of $500. On this appeal he alleges trial error and a manifestly excessive sentence.
According to the State's evidence, Josephine Branch worked for defendant as a prostitute. She had apparently determined to leave him and on Friday, July 16, 1982 he was engaged in a
search for her whereabouts in the City of Newark. He visited the Shalimar Hair Salon where he told Byron Richards that Branch had run off again, that he had too much invested in her and that when he caught her he was going to "kill the bitch." Defendant found Branch at 4:00 the following morning, Saturday, July 17, 1982, sharing the bed of a male companion in the latter's apartment. Defendant seized Branch, punched her and ordered her to get dressed. She put on her clothes and defendant then dragged her out into the hallway where he beat her with a shovel, leaving her blood on the floor of the hallway as they left the building. Branch was later admitted to the Harlem Hospital in New York City where she reported that she had suffered her injuries in a "mugging."
At around 5:00 or 6:00 p.m. of the same day defendant picked up Branch from the hospital where her head and leg had been sutured and bandages had been placed on her head, arm and leg. He then delivered her to her apartment on Elizabeth Avenue in Newark where he left her in the company of Towanda Whitfield. Whitfield had also been formerly employed by defendant. Defendant then left the apartment and returned the following morning, Sunday, July 18 at about 6:00 a.m. Whitfield testified that Branch's physical ordeal had weakened her to the point where she required assistance even to reach the bathroom.
When defendant returned to the apartment, Branch, who was a narcotics user, was in considerable pain and was asking for drugs. An argument developed between Branch and defendant, and Whitfield was ordered into another room of the apartment.
The events of the following period of approximately fifteen minutes were then recounted not only by Whitfield, but by a number of neighbors in the building. The words "bumping" and "thumping" were used to describe the sounds of a body repeatedly hitting the bedroom wall. In the melee, Branch's voice was heard screaming for help. She called for her mother,
screaming that she could not take it any more and that she was going to jump. The apartment was on the eleventh floor of the building. One witness, a retired Newark police officer, testified that she heard a voice from the Branch apartment saying, "help me, somebody help me. He is killing me. Call the police. Please make him stop." Another witness, whose apartment was directly above Branch's, heard the girl crying and saying, "you don't love me no more; I am going to jump," and a man's voice answering "go ahead and jump." Branch then threw herself out the window and her life ended on the ground below.
Defendant's contention which we first consider is that the trial judge erroneously permitted Byron Richards to testify that he had been shot in the back twice on November 5, 1982, some three days before the case was originally scheduled for trial. Citing Evid.R. 55, defendant argues that the testimony was evidence of "other crimes" which did not qualify for admissibility under that rule and, further, that the evidence fell short of demonstrating that defendant was responsible for the shooting.
The purpose of the testimony was to demonstrate defendant's determination to deprive the court of highly incriminating evidence. As such, it was clearly admissible as illuminating defendant's consciousness of his own guilt and on the theory that any conduct of the defendant inconsistent with his claim of innocence is admissible in evidence. See State v. Rechtschaffer, 70 N.J. 395, 413-415 (1976) and State v. Hill, 47 N.J. 490, 500-501 (1966). It was not subject to the restriction of Evid.R. 55, which only excludes evidence of other crimes as proof of defendant's "disposition to commit crime" as the basis for an inference that he committed the crime for which he was on trial.
Evidence that the shooting occurred at defendant's instigation was adequate. Commencing around the end of October 1982, defendant, both personally and through intermediaries, importuned Richards with offers of bribe money to make himself ...