On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-02-0675.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 18, 2007
Before Judges Coburn, Fuentes and Grall.
Defendant David L. Moon appeals from a final judgment of conviction and sentence. A jury found him guilty of purposeful or knowing murder, N.J.S.A. 2C:11-3a(1); endangering an injured victim, N.J.S.A. 2C:12-1.2; possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a firearm, N.J.S.A. 2C:39-5b; and hindering his own apprehension, N.J.S.A. 2C:29-3b(1). He was acquitted of felony murder, robbery and one count of hindering apprehension, and the jury found that he did not act in the heat of passion resulting from reasonable provocation. We reverse defendant's conviction for endangering an injured victim but affirm all other convictions. The sentence imposed and our reasons for remanding for clarification of that sentence are discussed in section III of this opinion.
Corie Carter died as a consequence of a gunshot wound to his head. Within hours of the shooting, defendant was arrested. He admitted that he had fired the fatal shot and explained why. The following description of the events is based on defendant's statement and the trial testimony given by Willie Carter (Carter) and John Martinez (Martinez), who were with defendant and Corie. Defendant did not testify, but the jurors heard a recording of the statement he gave to the police.
Defendant, Corie, Carter and Martinez spent the evening and early-morning hours of February 22 and 23, 2003, in a fenced and gated lot in Camden where Martinez kept his trailer home. The men were reminiscing about a friend who had recently died, talking and "rapping." Others joined them during the course of the night. Everyone was drinking, but Carter did not notice anyone who was drunk and was not aware of anyone smoking marijuana.
After the others left the lot and Martinez was in his trailer, defendant and Corie got into a debate about "God" and the "well-being of human beings." The debating turned to quarreling, and they stood "face to face." Carter stepped between them three times. On his third attempt to calm them down, he noticed a gun in Corie's hand and stepped away. Corie fired the gun three or four times. Defendant, who had turned away from Corie, felt the bullets "whiz past" him. Carter saw the "sparks" from Corie's gun and saw defendant check himself to see if he was shot. Defendant was not hit. Martinez had heard loud voices and a popping sound from inside the trailer. When he came outside, he saw Corie with a gun in his hand. Corie put the gun away, and Martinez went back inside.
To Carter, after Corie fired his gun, defendant appeared as if he were in shock but did not seem angry. Defendant stayed and talked for about ten or fifteen minutes after the shooting.
Defendant gave a detailed account of his conversation with Corie. They agreed that things were "straight" between them and shook hands. Then Corie handed defendant his gun and said, "shoot me." Defendant was "shocked" by that statement and gave the gun back to Corie, who laughed and offered defendant something to eat. Defendant ate some rice but afterwards felt "freaked out" by what had happened. He left to take a walk. Martinez heard defendant say he would be back.
Defendant returned and spoke to Corie. Carter could not hear what they were saying but assumed everything was alright because they were talking in a friendly way. He thought defendant was trying to make Corie feel "comfortable."
Defendant explained that he came back to "make sure that everything was okay" between him and Corie. He walked up to Corie, asked if they were "cool," and gave him a hug and kiss. Corie warned defendant that if he told anyone what had happened, he would kill him. Defendant described his reaction: "When [Corie] told me he was going to kill me, I just snapped, not really snapped, I just took out the, the gun I had that was in my pocket . . . . I . . . pulled the trigger. The body dropped."
Carter heard the shot and saw Corie fall to the ground. According to Carter, after defendant shot Corie, he said "don't nobody be shooting at me." Defendant closed and locked the gate to the lot. Carter saw him drag and kick the body. Because defendant removed Corie's gun, Carter assumed defendant was looking for the gun when he kicked Corie. Martinez, who heard the shot and Carter yelling, came outside again. He saw defendant with two guns. Corie was in a "sitting position" near a truck on the lot. Martinez did ...