Antell, Long and Baime. The opinion of the court was delivered by Antell, P.J.A.D.
After a trial by jury, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4a, as a lesser included offense of murder, N.J.S.A. 2C:11-3a(1) and (2), possession of a weapon (shotgun) for an unlawful purpose, N.J.S.A. 2C:39-4a, and conspiracy to commit murder, N.J.S.A. 2C:11-3a(1) and N.J.S.A. 2C:5-2. The conviction for possession of a weapon was merged into the conviction for aggravated manslaughter, and on those merged offenses defendant was sentenced to a custodial term of 30 years with a 15-year period of parole ineligibility. For the conspiracy conviction defendant was sentenced to a consecutive custodial term of 15 years with a 7 1/2-year period of parole ineligibility. Defendant now appeals, alleging error in the trial court's denial of his motion to suppress his confession, insufficiency of evidence to support the conspiracy conviction, error in the exclusion of evidence, error in the court's refusal to charge the lesser included offense of reckless manslaughter and a mistaken exercise of discretion in the imposition of sentence.
At around 1:45 a.m. on November 28, 1987, Leonard Jones and his wife, Dawn, were dropped off at their home on Butler Road in Franklin Park, by their friends, the Rudolphs, with whom they had attended Leonard's 20th high school reunion. Leonard walked to his Bronco, which was parked in the driveway, and searched for a remote control garage door opener which he kept in that vehicle so that he could enter his house through the garage. Not finding it, he walked to the garage door and prepared to open it with a key. At the sound of a shotgun blast which narrowly missed him, he shouted "Someone
shot at me!" and ran around to the rear of the Bronco. As he did, a second shot was fired and Leonard fell to the ground, screaming "I've been hit in the back, I've been hit!" Unable to enter her own house, Dawn hysterically ran next door to the house of her sister, Rayne Stryker, to call for help. From within Rayne's house she heard a third explosion. When Dawn and her brother-in-law, Garrie Stryker, reached Leonard's side he was heard saying "Garrie, I'm dying, I'm dying." He then fell silent and his self-prognosis was quickly fulfilled.
The Franklin Park police who arrived at the scene found Leonard lying in a pool of blood. They attempted first aid, but his heart was no longer beating and there was no respiration. He was pronounced dead on arrival at Princeton Medical Center.
On his way to the scene, Franklin Park Police Officer Joseph Sierotowicz observed a van speed past him on South Middlebush Road. He turned around, and after a short chase he overtook the vehicle and ordered the driver out. During the weapons patdown that followed, a black remote control garage door opener fell out of the driver's chest pocket. The driver had no driver's license, registration, insurance card or other identification, but he identified himself as defendant, Edward James Abrams, and stated that he lived a short distance away. He explained his presence in the area by saying that he had fought with his family earlier and was simply riding around. Inside the van, Officer Sierotowicz saw a zippered gun case lying next to the driver's seat. The case contained a 12-gauge, double-barrel shotgun for which defendant could not produce any authority to carry.
Officer Craig Novich, who was also en route to the scene, stopped to assist Officer Sierotowicz. Then, leaving Sierotowicz on the road with defendant, Officer Novich went to the crime scene and learned that the victim had been killed with a shotgun. After this information was transmitted to Sierotowicz
defendant was taken to Police Headquarters for questioning.
The interview at Headquarters took place between 3:20 and 3:40 a.m. Although defendant at first denied any involvement in the shooting, he agreed to accompany the detectives to the Somerset County Prosecutor's Office for a polygraph examination. While waiting for the polygraph examiner to prepare for the examination, defendant stated to the police that he was willing to discuss his involvement in the homicide. Thereupon, commencing at 6:31 a.m., defendant gave a tape-recorded confession in question-and-answer form which was completed at 7:20 a.m. The statement was followed later that morning by a detailed reenactment of the crime which was recorded with a video camera between 10:19 a.m. and 11:24 a.m.
At the time of the homicide, defendant was 19 years old. According to his statements, he had been carrying on a sexual relationship with Dawn Jones for a year and a half and believed that he was in love with her. Dawn was 33 and, approximately 10 years earlier, had acted as defendant's baby sitter. Defendant told the police that he killed Leonard because he wanted his wife. He explained that he believed Dawn was going to the class reunion with Leonard against her will and that Dawn's sister, Rayne, had told him that Leonard and Dawn would probably have sexual relations when they returned home.
According to defendant's statement, he drove to the Jones' neighborhood and parked his van in a forested area at around 11 p.m. Carrying his shotgun and with three slug shells in his pocket, he walked through the woods and climbed a seven-foot fence into the Jones' back yard. Knowing that the Jones' kept a remote control garage opener in the Bronco which was parked behind the house, defendant took it out of the vehicle and placed it in his pocket. He noted that he used his shirt to close and open the door so that he would leave no fingerprints. His reason for taking the remote controller was so "that they would not be able to get into the house as fast as, as they normally
would. That would give me more time to, to set, to set myself up to what I was about to do." He then waited in the cold and the rain for approximately 2 1/2 hours.
When defendant heard the couple leaving the Rudolphs' car, he put two shells into his gun and pushed the safety up. As defendant anticipated, after he unsuccessfully searched for the remote controller Leonard walked towards the garage door "and that's when I took the first shot and I do believe I missed because he, he didn't say he was hit, he said someone shot at me." When Leonard ran for shelter defendant fired again, this time hitting his victim squarely in the back. The first two shots were fired at a distance of between 15-20 yards. The final shot was fired after Dawn ran into her sister's house for help. Defendant was then standing "[p]robably around about five feet" from Leonard who was lying on the ground unable to move. In reply to the interrogating officer's question, defendant stated "[m]y intent was, was to kill him." He then fled to his waiting van.
Defendant's contention that the State failed to satisfy the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), has no merit. The record is clear that before beginning their questioning the police clearly apprised defendant of his rights, and that defendant acknowledged in writing that he had been advised thereof. He was reminded of those rights and they were read to him again before the tape-recorded statement began at 6:31 a.m. Defendant again acknowledged that he was aware of them. Although the Miranda warning does not appear to have been repeated just prior to the video reenactment later that morning, it was fresh in his mind and the Supreme Court has said "[o]nce a defendant has been apprised of his constitutional rights, no repetition of these rights is required." State v. ...