On appeal from Superior Court of New Jersey, Law Division, Essex County.
Brody, Long and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.
[213 NJSuper Page 32] A jury found defendant guilty of aggravated manslaughter (N.J.S.A. 2C:11-4(a)), possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a)), and hindering his own apprehension by suppressing, concealing or destroying evidence (N.J.S.A. 2C:29-3(b)(1)). The jury acquitted defendant of murder, the criminal homicide for which he had been indicted. After
merging the weapon offense with the manslaughter, the judge imposed a prison term of 20 years with a 10-year period of parole ineligibility for the manslaughter and a consecutive 5-year prison term for the hindering. Defendant appeals the convictions and the State cross-appeals the merger. We affirm.
The State produced evidence of the following facts. Defendant was the head of a ring of heroin and cocaine distributors. About a month before his death, Mack Toney, the victim of the homicide, had joined the ring as an "enforcer" because of his reputation for effectively using strong-arm tactics. The homicide occurred during a meeting of the group, which defendant had called to determine who among them had been stealing from their inventory of drugs. At the beginning of the meeting, defendant prominently displayed a loaded handgun to underscore the seriousness of the matter. Because he did not know the identity of the thief, defendant interviewed each member separately out of the presence of the others. After he considered the cross-accusations that developed, defendant concluded that Toney was the thief and shot him to death as a lesson to the others. The State's story was presented through the testimony and prior inconsistent statements of witnesses to the crime. Their testimony was at times vague and contradictory, and generally not forthcoming because they were torn between loyalty to defendant and fear of being prosecuted for their illegal activities.
The hindering charge, not seriously contested, arises out of defendant's efforts to dispose of Toney's body and otherwise cover up the homicide.
The defense was self-defense. Essentially, defendant testified that when it became apparent to all that he suspected Toney, Toney drew the handgun "on" defendant and was then shot during a struggle in the course of which defendant seized the weapon. Defendant thereupon shot Toney one or two more
times with the weapon. There were substantial inconsistencies and unexplained gaps in defendant's story.
Defendant raises the following points in his main brief:
POINT I THE TRIAL COURT'S DENIAL OF DEFENDANT'S MOTION TO EXCLUDE HIS PRIOR CRIMINAL RECORD CONSTITUTED AN ABUSE OF DISCRETION SO PREJUDICIAL TO THE RIGHTS OF THE DEFENDANT AS TO REQUIRE THAT THE JUDGMENT BE REVERSED.
POINT II THE DETERMINATION BY THE TRIAL COURT TO ADMIT DEFENDANT'S ORAL STATEMENT AS AN EXCEPTION TO THE MIRANDA ...