On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication February 27, 1996.
Before Judges Michels, Baime, and Kimmelman. The opinion of the court was delivered by Baime, J.A.D.
The opinion of the court was delivered by: Baime
The opinion of the court was delivered by BAIME, J.A.D.
Following a protracted jury trial, defendant was found guilty of murder (N.J.S.A. 2C:11-3a(1) and (2)), aggravated assault (N.J.S.A. 2C:12-1b(1)), possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a), and possession of a rifle without a permit (N.J.S.A. 2C:39-5c(1)). The trial court sentenced defendant to life imprisonment with a thirty year parole disqualifier on the conviction for murder, to a consecutive ten year term with a five year parole disqualifier on the conviction for aggravated assault, and to a concurrent five year term on the conviction for possession of a rifle without a permit. The trial court merged the conviction for possession of a firearm for an unlawful purpose with the murder conviction. Defendant was assessed the applicable penalties.
On appeal, defendant contends (1) the trial court committed plain error in its instructions regarding self-defense, (2) the Judge's charge on possession of a firearm for an unlawful purpose failed to apprise the jury of the right to carry a weapon for self-protection, and (3) the sentences imposed were manifestly excessive. We find no sound basis to disturb defendant's convictions or the sentences imposed.
The facts were hotly contested at trial. On November 11, 1992, Michael and Mitchell Saunders visited their uncle, Charles, at his Newark apartment. In the course of their conversation, Charles, who was superintendent of the apartment building, mentioned that he had been having problems with defendant. Defendant, who was then sixteen years old, resided in the building with his mother, Mary Manigo.
Following their visit, the Saunders brothers confronted defendant, who was standing in the front of the building. Defendant responded that he had no difficulty with Charles. He then left the two men, entered his apartment, and returned with his mother, who stopped a passing police car. The police officer told Charles to direct his nephews to leave. Believing that the argument had been defused, the officer then departed.
Shortly after the police officer left the scene, a fistfight erupted between Clarence Roundtree, a friend of defendant, and the Saunders brothers. It was undisputed that the fight ended quickly and inconclusively.
During the altercation, defendant entered his apartment and emerged with a rifle. From the landing in front of the apartment building, defendant fired at least one shot in the air, at which point the gun jammed. While defendant attempted to engage the trigger mechanism, Roundtree took the rifle from him and pointed it at the Saunders brothers. Roundtree unsuccessfully attempted to fire the weapon. Defendant then grabbed the rifle from Roundtree's hands and fired at least one more shot in the air.
The State's witnesses gave sharply differing accounts concerning what happened next. Michael Saunders testified that he and his brother ran to their car and attempted to enter it. While running to the car, Mitchell reached his hands into his pants pockets to remove his car keys. As Mitchell was opening the driver's door, defendant shot him in the chest. The bullet pierced his heart and aorta and caused his chest cavity to fill with blood, ultimately killing him. Upon seeing his brother fall, Michael ran around the car in an effort to reach his uncle's apartment. As Michael passed the car door, defendant shot him once in the shoulder, the bullet piercing his lung. Defendant then fled from the scene. The police were immediately summoned, and both victims were transported to the hospital. In a statement given in the emergency room, Michael recounted that his brother had been running toward the defendant when he was shot and that the two had been involved in an ongoing dispute.
Diamond Burchett, who lived next door, largely corroborated Michael's account of the shooting, although he never saw Roundtree with the weapon. He did state, however, that when the gun jammed, one of the Saunders brothers remarked to defendant that he was not "shooting nothing but blanks." Burchett also testified that one of the Saunders brothers was moving toward defendant when he was shot.
Mary Manigo testified that after defendant had retrieved the gun, he fired several warning shots in the air. She claimed that, notwithstanding these shots, the victims continued to approach defendant while reaching into their pants pockets. In the witness's words, the Saunders brothers "kept walking like zombies[,] like they couldn't be touched" by bullets. According to Manigo, ...