On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 00-06-0300-I.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Collester and Grall.
Defendant Herman L. Gaines appeals from a final judgment of conviction and sentence, and the State cross appeals from the merger of defendant's convictions. A jury convicted defendant of aggravated manslaughter contrary to N.J.S.A. 2C:11-3a; possession of a weapon with an unlawful purpose contrary to N.J.S.A. 2C:39-4a; and possession of a handgun without a permit contrary to N.J.S.A. 2C:39-5b. The judge merged defendant's conviction for violation of N.J.S.A. 2C:39-5b with his conviction for violation of N.J.S.A. 2C:39-4a and imposed the following sentences: on aggravated manslaughter, a thirty-year term of incarceration, eighty-five percent of that term without possibility of parole, followed by a five-year term of parole supervision, N.J.S.A. 2C:43-7.2; and, on possession of a handgun with an unlawful purpose, a ten-year term, five years without possibility of parole, concurrent with the sentence on aggravated manslaughter. The judge also imposed a $1,000 VCCB assessment, a $150 SNSF assessment and a $30 LEOTEF penalty.
On August 15, 1998, fifteen year old Kevin Hill was shot and killed at a high school graduation party held in a backyard on Irvington Street in Franklin Township. By all estimates, there were well over two hundred people in attendance. The guests moved between the graduation party and a birthday party hosted in the adjoining backyard of the graduate's next-door neighbor. When Hill was shot he was standing near a chain link fence that spanned the rear border of both yards and separated them from the backyards of homes fronting on Hillside Street. There was a dense, but not continuous, border of bushes, vines and trees on the Irvington Street side of the fence.
Shameera Boston, then twelve years old, had danced with Hill and was standing in front of him, with her back to him. She heard a sound like a balloon popping and looked to the bushes at her side. She then heard a second noise and saw a flash. She saw defendant in the bushes. She knew defendant and recognized him; he was her mother's friend. Defendant's arms were up and his right arm was out in front of him, hand turned up. As he lowered his arm she heard a "heavy drop" in the bushes. She fell on top of Hill.
Nefitia Bridgeforth, Boston's cousin, was four or five feet from Hill when she heard a gunshot and saw sparks from the bushes. Like Boston, she saw defendant. She had known defendant for seven or eight years and had no doubt that it was him. He was holding a revolver. Bridgeforth could not tell whether he was pointing the gun at Hill. She got down on the ground.
As the other guests started to run from the backyard, Boston left with her sister, and Bridgeforth ran to the front yard. Stacey and Jason Gaines, defendant's uncles, stopped her and asked where defendant was. As the crowd dispersed, Bridgeforth heard shots in the street, which she described as sounding like "up in the air" shots. Neither Boston nor Bridgeforth stayed to report what they had seen. There were no reports of additional shots in the backyard or on Hillside Street.
A police officer who arrived at the scene after the shooting described what he saw and heard as "panic," cars pulling away and people running and pushing. He worked his way toward the rear of the backyard where a man was trying to administer CPR to Hill. Although the officer could not find Hill's pulse, he assisted until paramedics arrived. Efforts to revive Hill at the hospital were not successful.
The medical examiner who performed Hill's autopsy concluded that the fatal bullet was fired from a gun held higher than Hill's shoulder and passed through wood before it hit Hill. There were splinters of wood around the bullet hole on Hill's shirt, and the entry wound was above his left collar bone. The wound was oval in shape, indicating that the bullet was tumbling, not traveling straight, when it struck Hill. By the time the bullet reached Hill, it was breaking apart. The doctor found a piece of the bullet jacket on Hill's skin and several fragments of the bullet's lead and jacket inside his body along the bullet's path, which was from left to right, front to back, and up to down. Hill was six feet and one inch tall. The doctor referred to the unknown wooden object as the shooter's secondary target, explaining that a secondary target is an object through which a bullet passes en route to the shooter's primary target. When asked, the doctor agreed that a tree branch, or some other wooden object, could have been the shooter's primary target.
There was a tree in the backyard yard in which the party was held. Its branches covered a fairly large area, at least to the edge of the backyard fence.
One of the fragments of the bullet jacket the medical examiner recovered was sufficiently large to permit its identification as a .44 caliber bullet. That fragment also bore sufficient markings to identify the gun from which it was ...