On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Antell, Dreier and Brochin. The opinion of the court was delivered by Dreier, J.A.D. Antell, P.J.A.D., concurring.
Defendant appeals from convictions after a jury trial of two counts of felony murder, N.J.S.A. 2C:11-3a(3), and one count each of first degree robbery, N.J.S.A. 2C:15-1a(1)(b), and second degree criminal escape, N.J.S.A. 2C:29-5(a) and (d). Defendant was found not guilty of intentional murder, N.J.S.A. 2C:11-3a(2).
Defendant Manning and his codefendant, Richard Charles Williams, were accused of killing New Jersey State Trooper Philip Lamonaco, robbing him of a gun he had confiscated from Manning during a traffic stop, and fleeing the scene. The trial judge on February 18, 1987 sentenced Manning to life in prison, 30 years without parole, to be served consecutive to an earlier federal conviction. The judge also imposed a Violent Crimes Compensation Board penalty of $10,000. The jury could reach no verdict regarding Williams, and a mistrial was declared.
On appeal, the defendant raises three issues:
I. The trial court unconstitutionally denied an indigent defendant expert services, ruling that State v. Stockling, 160 N.J. Super. 486 (App.Div.1978), barred such services, no matter how necessary they were to the preparation of the defense.
II. The jury's verdicts were fatally repugnant, convicting Thomas William Manning of conduct for which he was not charged.
III. The prosecution excused black prospective jurors because of their race, in violation of Article I, Paragraphs 5, 9 and 11 of the Constitution of the State of New Jersey.
On its cross-appeal, the State raises a single issue:
IV. The sentencing court improperly merged defendant's conviction of escape into defendant's conviction of felony murder.
As we find no merit to any of defendant's claims, we affirm the decisions of the trial court, although as to the first point, for reasons other than those expressed by the judge.
New Jersey State Trooper Philip Lamonaco was shot and killed at about 4:30 p.m. on December 21, 1981, near mile marker 3.9 on Route 80 west. Ten witnesses, all of whom had been traveling on Route 80 at the time of the shooting, testified about the events prior to and after the shooting, as did Manning himself.
Reading the witnesses' testimony is not unlike watching consecutive frames in a movie. Each saw a different scene of the event. Most of the witnesses saw the trooper's patrol car with its lights flashing, parked behind another car on the shoulder of the westbound acceleration lane from Exit 4. Charles Hamilton testified that while he was driving east toward the truck stop at Exit 4, he saw the trooper leaning over, with his hat in his left hand, talking to someone through the driver's window of a "bluish-green mid-size" car. The car was also described as "blue," "bluish-greyish," and "dark green."
The second witness, George Rowe, testified that while he was driving west in his Mack truck toward the two stopped vehicles, he saw the trooper stepping back from the "blue Nova" with his hands "out to his sides" and a "shiny" nickel-plated gun in his left hand. At the same time he saw the driver of the car "sitting back" in his seat. Six witnesses testified that there were two people in the Nova, the driver and a passenger.
Three other witnesses testified that there might have been three people in the Nova, two passengers and the driver.*fn1
Just moments after Rowe passed the scene, two other witnesses saw the driver standing with his back to the car, facing the trooper, with "his hands up" in "a fist-fight type of confrontation." His hands were empty. A third witness saw a "shiny" gun in the hands of the trooper; yet another also saw the gun but did not describe it as "shiny." The driver then ran into the traffic lanes and the trooper fired at him. At that time no gun was seen in the driver's hands.
While the driver and the trooper were facing each other, a passenger was outside the Nova on the passenger's side, moving toward the trooper's car. A gunfight ensued between the trooper and the passenger. Shots were fired; some witnesses said "many" shots, others limited the number to two or three. "Snow spurts," presumably caused by bullets hitting the snow, were seen behind the trooper (who was standing a "few feet" in front of the Nova), as well as between the two cars. After the volley of gunfire, the passenger grabbed his stomach and fell into the snow bank near the rear of the trooper's car. The trooper was also shot and fell face-first into the snowbank.
After the trooper fell, the passenger was seen "running" toward and "back[ing]" into the front passenger door of the Nova. During the shooting the driver must have reentered the Nova on his side, because a witness testified that after the passenger got back into the car, the driver "jump[ed] out of the left side of the car." One of the witnesses, Donald Longyore, then saw the driver walk over to the trooper, bend down over him, and stand up with a "shiny" gun in his hand. According to Longyore, the driver pointed the gun over the prone trooper and fired two or three shots. The driver then reentered the Nova, and was seen switching a "nickel-plated" gun from his left hand to either his right hand or the front seat.
The Nova then sped west on Route 80. Yet another witness, who had seen part of the confrontation and was driving a
long-haul freight truck back to Colorado, tried to push the car off the road. He was unsuccessful, and the Nova drove off Route 80 at the nearest exit, onto Hainesburg Road. The Nova was next seen on Route 94 in Hainesburg by a witness who saw only two people in the car.
Back at the scene of the shooting on Route 80, after witness George Hamilton left his passenger at the truck stop on Exit 4 he returned to Route 80, this time heading west. The trooper's car was still parked on the shoulder of the westbound entrance ramp to Route 80, and as Hamilton accelerated to enter Route 80, he saw the trooper lying face down, 15 to 18 feet in front of his car. Hamilton, a "first aider" with the Blairstown ambulance corps, checked the trooper for a pulse; when he could not find one, he went into the trooper's car and called for help.
The defendant testified to a different chain of events. He agreed that the car in question was his, and even stated that he had registered it under the name Barry Easterly. He further acknowledged that the trooper had pulled him over for speeding. But according to the defendant, he had picked up hitchhikers when he entered Route 80, a man and a woman, and therefore when he was stopped by the trooper he had two passengers. The man was seated on the passenger side of the front seat and the woman was seated in the back directly behind Manning. According to defendant, Williams was not in the car.
Manning testified that after the trooper asked him for his license and registration, he recognized Manning as a fugitive and "grabbed [me] by the shirt . . . stuck his weapon right up close to my head and said: 'Don't move Manning. Put your hand on the wheel.'" The trooper then ordered Manning out of the car, "spun [me] around . . . and shoved [me] towards the vehicle . . . which caused [me] to start to fall. . . ." The trooper fired his gun near defendant's head, and Manning dropped to the ground, turning to face the trooper as he dropped. The defendant testified that he hit the trooper with his fist and ran eastward, into the traffic. He then reversed his course and dove across the back of his car, onto the passenger side, "for cover." According to the defendant the trooper then began firing ("he was trying to kill me"), and Manning, still crouched,
moved up the passenger side to get his gun from the glove compartment. Although the woman was still in the back seat, the man was standing outside the car and defendant found it necessary to "elbow" him out of his way.
The defendant also told the jury that it was then that he began firing at the trooper. The two exchanged volleys while defendant moved backwards down the passenger side of his car, then across the trunk and up the car to the driver's door for extra ammunition. He then realized two facts: the trooper was no longer firing at him, he was lying on the ground, and the trooper still had Manning's license. According to the defendant, "I ran to him, stepped between his gun hand and his body. Looked around the area for the license, couldn't find it, turned and left. Ran back to the car." According to Manning the trooper was dead ("I felt bodies before, and it was -- there was no life at all.") He put his own gun on the front seat of his car and then drove the car, with both passengers, west on Route 80. Because he "was getting pressed by some trailer trucks" and the shooting was being discussed on his CB radio, he "took the first exit" off Route 80 onto Route 94. He then left the car and told his passengers to ...