On appeal from the Superior Court, Law Division, Cumberland County.
Morton I. Greenberg, Long and Havey. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter comes on before this court on separate appeals by defendants Joseph Nathan Burks, Jr. and Gary Marcus King from judgments of conviction in this criminal case. We consolidate their appeals for this opinion. Disposition of the matter requires that we set forth its procedural and factual history at length.
On March 30, 1982 defendants were indicted in Cumberland County for the following offenses. In counts one and two both defendants were charged with aggravated manslaughter, N.J.S.A. 2C:11-4a, and with manslaughter, N.J.S.A. 2C:11-4. In the third count each was charged with unlawful possession of a shotgun without having obtained a purchaser identification card, N.J.S.A. 2C:58-3. In the fourth count Burks and in the fifth count King were separately and respectively charged with possession of a weapon by a person convicted of a crime, N.J.S.A. 2C:39-7. They pleaded not guilty to all charges and a joint jury trial on the first three counts ensued. Prior to the submission of the case to the jury the third count was dismissed on the State's motion. Defendants were each convicted of aggravated manslaughter but no verdict was returned on the manslaughter count as it was moot. Following completion of the jury trial and based on the record made there, the judge, with defendants' consent, tried counts four and five without a jury and found defendants each guilty of violation of N.J.S.A. 2C:39-7.
After defendants unsuccessfully moved for new trials they were sentenced as follows. Burks was sentenced on count one to 15 years imprisonment, with five years to be served before he is eligible for parole, and to a concurrent nine month
custodial term on count four. King was sentenced on count one to 18 years imprisonment, with six years to be served before he is eligible for parole, and to a concurrent nine month custodial term on count five. In addition penalties were assessed for the use of the Violent Crimes Compensation Board.
We deal with a preliminary point. King does not mention the conviction for violation of N.J.S.A. 2C:39-7 in either his notice of appeal or his brief and accordingly we consider that he has not appealed from the conviction of violation of that statute.*fn1 While Burks' notice of appeal indicates he is appealing the conviction for violation of N.J.S.A. 2C:39-7, in his brief he presents no basis for its reversal and thus we consider his appeal for the violation of that section as abandoned and accordingly we dismiss it.
The case involves the fatal shotgun shooting of Elijah Neal by one or both defendants in a rural area in Cumberland County. The property where the events occurred was owned in part by decedent and in part by his aunt. Decedent's property included a main house and, about 100 yeards behind the house down a dirt road, a pigpen, a cornbin and a shed used to store farm equipment and auto parts. Decedent kept pigs in the pigpen which he fed twice a day. According to decedent's widow, Daisy Neal, although decedent had lost a hand he was a good shot and frequently took a gun with him when he fed the pigs so he could shoot rabbits and rats.
Decedent's aunt's property was a plowed field with vegetation 12 to 14 inches high adjacent to decedent's property. While decedent seems not to have farmed his aunt's property, he took care of it and watched it for his aunt. Decedent's aunt allowed people to hunt on her property and neither it nor
decedent's property was marked with "no trespassing" or "no hunting" signs. There was a culvert about four feet deep with concrete sides containing a large drainage pipe on or adjacent to decedent's aunt's property, about 100 yards from his property. Apparently decedent rented and farmed a third property near the aunt's field. The area is close to Route 49 and the Ram's Head Inn.
On November 12, 1981 decedent left his house at 4:00 p.m. to feed his pigs. On that day defendants were hunting with shotguns in the field near decedent's property. King, who lived nearby and knew decedent, had previously hunted in some woods in the vicinity. While defendants were hunting King jumped a rabbit at which Burks then shot. They then chased the rabbit into the field behind decedent's house and it ran up toward the shed at the back of decedent's property. Defendants described the shed as being in a state of disrepair. Burks saw some marijuana inside of the shed and signaled to King to come to look at it. Burks said that he wanted to take the marijuana and run but King suggested that if they were to take the marijuana they should pretend they were hunting and looking for the rabbit by the shed. After King fired into the dirt, Burks reached into the shed and grabbed the marijuana which he then gave to King who wrapped it up in his coat. Defendants then ran across decedent's aunt's field and into the culvert.
Defendants began stripping the marijuana from the stalk. King testified he then heard a rifle shot which went over their heads from about 70 to 80 yards away. Defendants turned to face the direction of the gunshot and according to them heard at least one other shot. King testified that he was able to note the change in position of the person firing the shots and he knew "that each shot was getting, you know, closer, a lot closer." King said he heard a voice say "Stand up" or "Come out," and claimed that as he began to stand up out of the ditch the person shooting raised his rifle, whereupon King felt a
bullet go over his head. King then admitted that he "throwed [his] gun like over the top of the weeds and pulled the trigger."
Burks also testified that he heard several shots as the two men stripped the marijuana, a statement at odds with his earlier statement to the police that he heard shots as the two men ran across the field. When confronted with this prior statement, Burks testified that it was not true and he was upset when giving it. Burks stated that when King stood up he was almost shot and defendants then both shot at the person with the rifle. Burks testified that he did not want to hurt that person but the latter kept shooting. Unlike King, Burks did not hear any commands from the person.
After the shooting Burks ran toward the woods with King attempting to follow. King, however, slipped and retreated into the drainpipe in the culvert. While the pipe seems to cross under Route 49, King was unable to escape through it as it was barred off. Apparently fearing further shots, King waited for about 45 minutes in the pipe and then left and returned home. When Burks got home he told his brother what had happened following which the two of them went back to the scene of the shooting. Burks' brother saw a body, later identified as decedent, in the field. Burks and his brother then went to talk to King about the situation.
The three men decided to call the police and they did so. Dispatcher William Smith of the Fairfield Township Police Department testified he received a call from an unidentified person at 5:44 p.m. advising that someone across from the Ram's Head Inn was shooting at a couple of hunters. In response, Fairfield Officers James Blair and Danny Houchins checked the area but found nothing.
At 10:19 p.m. on the same day, decedent's wife called the Fairfield police and reported decedent had been missing since about 4:00 p.m. Houchins and Blair responded to the call and went to decedent's residence to look for him, arriving at about 10:30 p.m. Blair saw three sets of footprints which he believed
showed two people running and one walking. He followed them and found decedent lying on his right side on top of a 30-30 lever action rifle. Decedent had been shot in the face and chest and was pronounced dead at the scene. An autopsy showed he had over 100 entry wounds from shotgun pellets concentrated in his chest area and extending to his face.
The New Jersey State Police were notified of the situation and State Police Detective Gerald Mull arrived at the scene at approximately 12:35 a.m. on November 13, 1981. According to Mull, decedent was found 29 feet from the culvert with his rifle in a cocked position containing three unfired rounds of a capacity of eight. Mull ordered a preliminary search of the immediate area for spent shells as he believed that if decedent had fired his weapon in the vicinity any spent shell would have been ejected before a live shell could be introduced into the chamber. There was evidence that an ejected shell would travel no more than four feet from where the weapon was fired. The initial search within a 10-foot radius of where decedent was found was unsuccessful.
The next morning Mull looked without success for shells within a 15-foot circle around the spot where decedent was found. A further search on that day of the area from the body site to the culvert produced two 16 gauge shotgun shells, one No. 6 shell and one No. 8 shell. In addition, a small amount of marijuana was found.
On Saturday, November 14, Mull received two telephone calls, one from Houchins and one from an anonymous person, providing information that defendants were involved in the homicide. However, before Mull acted on the information defendants on that day turned themselves in. Both gave statements and their shotguns were recovered.
As a result of defendants' statements, which included an allegation decedent had fired at them, Mull, Detective Wayne Price and Detective Ashman went to the scene of the shooting on November ...