Before Judges Kleiner, Carchman, and Lefelt.
The opinion of the court was delivered by: Kleiner, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 1999
On appeal from Superior Court of New Jersey, Law Division, Camden County.
Defendant Dennis L. Copling was convicted by a jury of first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a) (count one); first-degree murder of Kirby Bunch, N.J.S.A. 2C:11-3(a) (count two); aggravated manslaughter as a lesser-included offense of the murder of Mark Winston (hereinafter "Malik") pursuant to the indictment charging murder, N.J.S.A. 2C:11-3(a) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count five).
At sentencing, the trial judge merged defendant's convictions on counts one and four into his conviction on count three and sentenced defendant to a custodial term of life imprisonment with a thirty-year period of parole ineligibility. On count two, the judge sentenced defendant to a concurrent custodial term of thirty years with a fifteen-year period of parole ineligibility. On count five, defendant was sentenced to a custodial term of imprisonment of five years with two-and-one-half years of parole ineligibility to be served consecutively with the sentence imposed on count three. Appropriate statutory penalties were also imposed.
Defendant did not testify at trial nor did he present any witnesses in his defense. We will briefly review the State's evidence.
Lakesha Buckhannon (hereinafter "Lakesha") lived with her mother in Camden. Lakesha's older half-brother, Kirby Bunch (known as and hereafter referred to as "K.C."), lived nearby. Lakesha received a puppy as a Christmas present in 1994, and her friend, Gary Copling (hereinafter "Gary"), defendant's younger brother, offered to help walk and train the puppy.
On January 17, 1995, Gary took the dog to his home, but when Lakesha stopped at the Copling residence to retrieve the dog, Gary said he did not have it. Lakesha was upset and believed Gary was lying to her, so she called her brother K.C. Lakesha told K.C. what had happened with the dog then she, K.C., their cousin, Latisha Fair (hereinafter "Latisha"), and K.C.'s friend, Nate Simmons (hereinafter "Nate"), drove around the neighborhood looking for Gary. When they found him at a friend's house, K.C. hit Gary with a bottle and then began to punch, kick, and choke him. Eventually, Nate pulled K.C. off of Gary, and Gary fled.
The next day, Lakesha, her mother, and Latisha were at the home of a friend when defendant, Gary's older brother, arrived. Defendant had learned that K.C. had beaten Gary the previous evening. Defendant demanded to know K.C.'s whereabouts. Defendant kept repeating that he was going to "get" K.C. Defendant also stated that he was going to find K.C. and kill him. Because defendant was visibly upset, Lakesha's mother called the police. The police arrived, but did not take any action. Thus, Lakesha and Latisha left their friend's house to find K.C. and warn him about defendant.
That evening, K.C. was at Nate's apartment. A mutual friend, Benjamin Young (hereinafter "Ben"), was also visiting. According to the testimony of Nate and Ben, Malik arrived at the apartment upset and angry, wanting to know why the three men had jumped Gary the previous night. Nate told Malik that the three men had not jumped or beaten Gary. Malik then said they "well, you're going to speak with [Gary's] brother." K.C. and Malik then walked into the kitchen together.
Nate testified that he was sitting in the living room when K.C. and Malik entered the kitchen. Nate saw another man enter the kitchen through the back door of the apartment. The man was wearing a foam rubber half-mask over the lower half of his face. Nate described the man as about 6'2", well built, and wearing a black and white jacket, a black hooded sweatshirt with the hood pulled up, a black sweater, and dark green pants. Nate testified that the man said, "Why you jump my brother?" and pulled a black automatic handgun from his jacket pocket. K.C. was standing in front of Malik and grabbed for the gun. Both Nate and Ben heard a gunshot and started to run. As they fled, they heard between three and five more gunshots. Nate further testified that the man in the mask matched the height and build of defendant.
Timothy Queensberry, a neighbor, testified that he was at home that same evening and heard gunshots and a voice shouting that he recognized as K.C.'s. After hearing the commotion, Queensberry walked outside and saw K.C. lying on the ground, calling for help. Queensberry could tell that K.C. had been shot and asked who had shot him, to which K.C. replied, "Dennis," obviously referring to defendant. As Queensberry was aiding K.C., a car stopped momentarily across the street and then drove away. Then a man, described as about 5'6" tall and "kind of built", ran to Queensberry and K.C., pulled a black 9-millimeter handgun from his waist, and shot K.C. once in the neck. The man then fled, firing shots behind him, but failing to hit anyone. Queensberry testified that the man he saw shoot K.C. in the head was not defendant, whom Queensberry knew.
The police arrived and found K.C. dead on the ground outside the apartment. The police found Malik in the kitchen, still alive but suffering from gunshot wounds. A loaded 9-millimeter handgun, containing seven rounds of live ammunition with one round still in the chamber, was found on the floor in the kitchen. The emergency medical personnel transported both victims to the hospital where K.C. was pronounced dead, and Malik subsequently died.
The autopsy indicated that K.C. had been shot three times: in the back of the neck, the middle of his back, and his lower left side. The gunshot to the neck had been fired from a distance greater than eighteen inches. The other two gunshots to his torso were "contact" wounds, resulting from the gun being placed directly on his body. Neither the shot to the neck nor to the lower left side would have been independently fatal; however, the shot to his back alone would have been likely to cause death. The reported cause of death was the combined effect of the three gunshot wounds.
The autopsy performed on Malik revealed that he had been shot twice, in his back and thumb. The wound to his back was fired from a distance and caused his death.
One bullet was recovered from each victim's body. Two spent 9-millimeter shell casings were found at the scene, one on the kitchen floor and one outside the apartment. A third 9-millimeter shell casing was found by a neighbor and turned over to the police. The State Police laboratory determined that all three shells were fired from the same weapon, but that none of the shells could have been fired from the gun found at the scene on the kitchen floor.
On January 27, 1995, the police arrested defendant for killing K.C. and Malik. Defendant was provided with Miranda *fn1 warnings. At first, defendant maintained that he was unaware of the deaths of the two victims. However, later in the interview with the police at the prosecutor's office, defendant admitted that he had gone with Malik and Donne Parker, known as "Fahim" on the evening of January 18, 1995, to find K.C. at Nate's apartment and fight with him. Fahim waited in the car while Malik and defendant walked up to the apartment. Defendant waited outside while Malik entered the apartment. Defendant had instructions from Malik to fetch Fahim if any problems developed.
Inside the apartment, Malik and K.C. began to exchange heated words, so defendant ran back to the car to summon Fahim. Defendant stated that he fled from the apartment, but Fahim entered the apartment and shot at K.C. According to defendant's oral statement, as he was running, he heard shots, looked behind him, and saw K.C. lying on the ground with Fahim standing over him and shooting at him. The oral interview was interrupted when defendant's family arrived at the prosecutor's office.
A formal written statement was never prepared.
At trial, Leervin Hill testified that on the evening of the crime, he saw defendant pacing and cursing on the street. Defendant approached Hill, took a black foam rubber half-mask from around Hill's neck, and walked away with the mask. Both Lakesha and Latisha testified that they had seen defendant with a handgun prior to the killings.
At trial, the State contended that defendant fired two shots at K.C. in the kitchen and that Fahim, acting as an accomplice and using the same gun, returned and shot K.C. once in the neck outside the apartment. The State further contended that the doctrine of transferred intent holds defendant culpable for murdering Malik because the shot that killed Malik was intended to kill K.C.
On appeal, defendant raises six points of error:
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE DEFENSE OF PASSION/PROVOCATION MANSLAUGHTER DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below.)
THE COURT'S FAILURE TO INSTRUCT THE JURY OF THE STATE'S OBLIGATION TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below.)
BECAUSE THE PROSECUTOR WAS WRONGLY PERMITTED TO ELICIT TESTIMONY ABOUT A PRIOR INCIDENT INVOLVING DEFENDANT'S POSSESSION OF A GUN, DEFENDANT WAS DEPRIVED OF ...