On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Dreier, Baime and Ashbey. The opinion of the court was delivered by Baime, J.A.D.
[226 NJSuper Page 308] Following a lengthy jury trial, defendant, a juvenile whose case had been waived to the adult court, was convicted of
murder (N.J.S.A. 2C:11-3), possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a) and possession of a handgun without the requisite permit (N.J.S.A. 2C:39-5b). The trial court imposed sentences aggregating 30 years and ordered that defendant serve the entire term without parole eligibility. In addition, defendant was assessed penalties totaling $550 payable to the Violent Crimes Compensation Board.
On appeal, defendant contends that (1) the trial court committed plain error by not permitting the jury to consider his age in determining whether the homicide was committed in the heat of passion resulting from a reasonable provocation, (2) the defense was incorrectly restricted in presenting evidence concerning the victim's assaultive acts against others and his use of free base cocaine, (3) the prosecutor's summation exceeded the bounds of fair comment, (4) the cumulative effect of these errors denied him a fair trial, (5) he was denied the effective assistance of counsel at the waiver hearing and the referral to the adult court was improper and (6) his sentence constituted cruel and unusual punishment. We have reviewed these contentions in light of the voluminous record and conclude that they are devoid of merit.
In order to place defendant's arguments in their proper context, we are obliged to recount the salient facts in some detail. The sole question presented at trial was whether the crime committed was murder, aggravated manslaughter, reckless manslaughter or voluntary manslaughter. It is undisputed that on October 11, 1984 defendant, who was then 15 years of age, using a handgun he had borrowed from a friend, shot and killed his next door neighbor, Michael Anderson. Uncontradicted evidence was presented disclosing that Anderson was shot in the face and shoulder at relatively close range. As defendant graphically testified at trial, the first time he pulled the trigger "it clicked and it didn't go off" and so he "shot it two more
times." The bullet from the first shot pierced the victim's brain and finally lodged in his skull. The second shot was apparently fired as Anderson was collapsing from the mortal wound. The victim died two days later as a result of brain damage.
The trial transcript reveals that the relationship between defendant and Anderson was a good one notwithstanding Pratt's complaint at trial that the victim on occasion acted like his "father." While it would appear that Anderson led a somewhat troubled life, the record does not suggest any confrontations between him and defendant prior to the day of the homicide.
On the afternoon of the shooting, defendant and some of his friends were gathered in the hallway of his apartment building. Because they were making noise, James Glenn, who occupied a second floor apartment, asked them to leave. Apparently, defendant and his friends acceded to this request.
From the noise, Glenn could tell that the group had moved to the next floor. He testified that their laughter and conversation continued for approximately ten minutes. Then Glenn heard Anderson arguing with defendant and his friends, telling them to get away from the door of his apartment and to stop smoking marijuana. After this Glenn heard "banging" and "rumbling" emanating from the hallway. Glenn correctly assumed from these noises that a fight had broken out between Anderson and one or more of defendant's group.
According to defendant's version of the incident, Anderson ordered him and his friends to leave the hallway. In response, defendant asked his mother if they could stay at the Pratt apartment. Being tired, she refused his request, and the group thus returned to the hallway. The dispute between Anderson and the others then resumed. Anderson came out from his apartment and attempted to push one of defendant's friends down the steps. He then pushed defendant, who went to his bedroom, retrieved a lead pipe and returned. After a brief struggle, Anderson took the pipe from defendant and struck
him about the face, nose and jaw with his fist. Mrs. Pratt, who had been resting after work and who was roused by the noise, entered her living room where she saw her son lying across the table and Anderson with "his guard up." She did not see Anderson strike her son, and she did not notice any blood on his face or clothing. Mrs. Pratt was able to stop the encounter by directing Anderson to leave her apartment. When defendant complained to his mother that Anderson had punched him, she replied that she would discuss the matter later with the deceased. Defendant then cleaned himself and left the apartment building. Mrs. Pratt subsequently noticed the presence of blood on the switchplate in the bathroom.
Unfortunately, the dispute was halted only temporarily. As defendant left the building, Glenn, who had been listening to the argument, heard him exclaim that he was going to get a "piece" and come back and "shoot" Anderson.
Defendant then met his friend Darnell McClean and told him that Anderson had beaten him up and that he was going to get revenge by shooting him. Defendant asked McClean if he knew where "Breasley" was, because he had a handgun. Breasley was also known as "Timothy Rogers" and "Ali Quan." The two then went off to look for Rogers.
They ultimately found him in front of a neighborhood store which was near the home of Rogers' girlfriend, Denise Hampton. Hampton heard defendant ask Rogers for his gun. Rogers kept the gun at Hampton's house, and, based upon his request, she retrieved it. Rogers' testimony confirmed Hampton's account. According to Rogers, defendant asked him if he had a gun. Defendant told Rogers he was going to "serve" someone. Rogers explained at trial that "serve" was a Muslim expression meaning that the person "served" would "not survive the day."
The point at which Rogers gave the gun to defendant was hotly contested at trial. According to Rogers, he handed the gun to defendant either at Hampton's house or during their
walk from Hampton's dwelling to defendant's apartment building. In contrast, defendant testified that the transfer did not take place until the group was in the hallway of his apartment building.
Rogers testified that when they arrived at the apartment building, defendant immediately proceeded to Anderson's apartment and knocked on the door. When Anderson opened it, defendant pulled out the gun and fired the two shots as described earlier. Rogers' account was consistent with Glenn's, who heard a knock on Anderson's door, which was followed by gunshots.
Defendant's account differed. Defendant explained that the transfer of the weapon took place at the apartment building. He claimed to have no knowledge of the fact that Rogers had a gun until the group was standing by the stairwell. Once there, Rogers pulled the gun out of his waistband and gave it to defendant, who then returned it. Rogers opened the gun, loaded it and placed it back under his waistband.
According to defendant, he then proceeded up the stairs and knocked on Anderson's door. When Anderson appeared, defendant asked if he remembered their earlier fight. Although Anderson did not respond, defendant claimed that a struggle immediately ensued.
Defendant then turned and walked downstairs, obtained the gun from Rogers and returned to the third floor landing. Anderson was still standing in the doorway. Defendant testified that he pointed the gun at Anderson, but "it just clicked." Anderson laughed briefly, at which point defendant "shot two more times." Defendant saw Anderson bend over after the first successful firing of the gun. Nevertheless, defendant pulled the trigger again.
At trial defendant claimed that he did not know whether the bullets he saw Rogers place in the gun were real or fake. However, he admitted that in the several versions of the shooting that he ...