On appeal from Superior Court, Law Division, Mercer County.
Approved for Publication November 26, 1996.
Judges Long, Skillman and A.a. Rodriguez. The opinion of the court was delivered by Long, P.j.a.d.
The opinion of the court was delivered by: Long
The opinion of the court was delivered by LONG, P.J.A.D.
Defendant, Dudley Rue was charged in Mercer County Indictment, 92-07-0827-I, along with codefendants Rory Bryson, Robert Dodson, Robert Williams, and Tyrone Williams with first degree murder in violation of N.J.S.A. 2C:11-3(a)(1), (2) and N.J.S.A. 2C:2-6 (count one); second degree possession of a weapon for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:2-6 (count two); third degree unlawful possession of a weapon without a permit in violation of N.J.S.A. 2C:39-5(b) (count three); and third degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:2-6 (count four).
Defendant was tried alone *fn1 and convicted of counts one, two and three. The jury acquitted defendant on the drug possession charge. After merging the conviction for the offense of possession of a weapon for an unlawful purpose into the murder conviction, defendant was sentenced on the murder conviction to a custodial term of 30 years with no parole eligibility. On the weapons permit conviction, defendant was sentenced to a concurrent custodial term of four years. An appropriate Violent Crimes Compensation Board (VCCB) penalty was also imposed.
Defendant appeals, contending that the following errors warrant reversal:
THE JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT DEFENDANT COULD HAVE BEEN FOUND GUILTY, AS AN ACCOMPLICE, ONLY OF AGGRAVATED MANSLAUGHTER OR MANSLAUGHTER, ON THE BASIS OF HIS OWN RECKLESS MENTAL STATE, EVEN IF OTHERS INVOLVED HAD THE MENTAL STATE FOR MURDER, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
IN A CASE WHERE THE VICTIM WAS NOT SHOT WITH A GUN BUT BEATEN TO DEATH, AN INSTRUCTION ALLOWING THE JURORS TO INFER THE MENTAL STATE FOR MURDER FROM THE USE OF A DEADLY WEAPON WAS UNFAIR, CONFUSING, AND OPERATED TO SHIFT THE BURDEN OF PROOF TO THE DEFENDANT, IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
In a supplemental pro se brief, defendant also urges:
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF THE COMPULSORY PROCESS FOR PRODUCING A WITNESS IN HIS FAVOR IN VIOLATION OF THE CONSTITUTIONS ...