On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, I96-02-00280.
Before Judges Pressler, Kestin and Alley.
The opinion of the court was delivered by: Alley, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Defendant was indicted and tried to a jury on charges of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1)and(2) (Count One); two charges of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Counts Two and Eight); armed robbery, N.J.S.A. 2C:15-1 (Count Three); two charges of aggravated assault, N.J.S.A. 2C: 12-1b(4)(Counts Four and Five); and two charges of terroristic threats, N.J.S.A. 2C:12-3a (Counts Six and Seven). He was convicted on all but the terroristic threats charges, which the trial court dismissed.
The court imposed the following sentences on these convictions: 30 years with a period of 30 years without parole for murder (Count One); 15 years with a period of 5 years without parole for armed robbery (Count Three), consecutive to the murder sentence; and 18 months with a period of 18 months without parole for the aggravated assault conviction under Count Five, concurrent to the murder conviction. The court merged the aggravated assault conviction under Count Four and the possession of a weapon for an unlawful purpose conviction under Count Eight into the murder conviction (Count One). The result was an aggregate sentence of 45 years imprisonment, with 35 years to be served without parole.
Defendant allegedly committed an armed robbery of Glen (Goon-Goon) Edward, John (Dash) Robinson, and Robert (Bashie) Etienne in July 1995. Three days after the robbery, the victims together with others allegedly attacked defendant in retaliation for the robbery. Badly beaten in the attack, defendant was hospitalized for about six weeks. The State's theory was that after defendant's release from the hospital, he killed "Frankie" Paul Robinson in retaliation for the assault by shooting him numerous times, late at night or in the early morning of September 14-15, although Robinson apparently had no involvement in the assault. The trial and convictions involved the charges arising out of the July robbery and the September homicide.
Defendant appeals from his convictions and sentence, contending as follows:
I. THE PROSECUTOR'S REMARKS DESIGNED TO ELICIT SYMPATHY FOR THE VICTIM FAR EXCEEDED THE SCOPE OF FAIR COMMENT, THUS DEPRIVING DEFENDANT OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL.
II. BECAUSE THE COURT IMPROPERLY REFUSED TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSES OF AGGRAVATED AND RECKLESS MANSLAUGHTER, DEFENDANT'S MURDER CONVICTION MUST BE REVERSED.
III. THE COURT'S FAILURE TO INSTRUCT THE JURY ON HOW TO EVALUATE PRIOR INCONSISTENT STATEMENTS MADE BY THE STATE'S WITNESSES DEPRIVED DEFENDANT OF A FAIR TRIAL.
IV. THE COURT ERRED IN IMPOSING THE PRESUMPTIVE SENTENCE FOR THE OFFENSE OF ARMED ROBBERY.
The evidence included the following: The victim's body was discovered on September 15, 1995, on Reservoir Avenue in New Brunswick at approximately 6:15 a.m. Several nine millimeter shell casings lay near the body. The medical examiner arrived on the scene at 7:45 a.m. and estimated that the victim had been dead for five hours, putting his time of death at about 2:30 a.m. An autopsy showed that the victim had been shot five times at close range. The medical examiner testified that the victim died of multiple gunshot wounds to his shoulder, neck, back, leg and chest, and concluded that the death was homicidal.
A police investigation initially produced little if any information from neighborhood residents, most of whom initially denied possessing any knowledge of the homicide. A deliberate increase in police presence on Reservoir Avenue, a high-drug area, was put into effect to promote cooperation with the stalled murder investigation and to step up the war on drugs. Several fruitful interviews and re-interviews with various neighborhood residents followed. Some of these residents recanted their initial statements and supplied relevant information or implicated defendant in the murder of the victim. Defendant fled to his native Detroit after the killing.
As stated, defendant had been seriously injured when, on July 30, 1995, in revenge for the robbery he had committed a few days earlier, victims of the robbery and their friends assaulted him. On several occasions after he was released from the hospital, defendant vowed to several individuals that he intended to seek revenge against his attackers. Glenn (Goon Goon) Edward testified, for example, that whenever he saw defendant on the street defendant would make a gesture with his hand pretending to be shooting at ...