On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-04-1790.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2007
Before Judges Wefing and R. B. Coleman.
Defendant, John Fleming, appeals from his conviction of aggravated manslaughter, as a lesser-included offense of murder, for which he was sentenced to twenty-two years in prison. We affirm.
On December 21, 2003, defendant, who was living in the Newark home of G.J. and her two children, killed G.J. Defendant and G.J. were paramours, and on the morning in question, they became involved in an argument that ended in her death.
One of the children, ten-year-old S.J., was awakened by a loud noise in the kitchen. When S.J. entered the kitchen, he saw defendant on top of his mother, stabbing her repeatedly with a knife. S.J. called 9-1-1 to report what was happening. Later, when interviewed by detectives, S.J. indicated that "Skin," the name by which he knew defendant, had killed his mother. He also identified defendant by pointing to his photograph.
An autopsy revealed that G.J. sustained twenty-five sharp object injuries to her body. Two of the injuries were considered lethal: (1) a wound to the right side of the base of her neck which had cut the carotid artery and jugular vein, and (2) a wound to the left side of her chest which would have caused asphyxiation. Among G.J.'s other wounds were several cuts on her hands which, according to the medical examiner, were consistent with defensive wounds.
Defendant turned himself in to police the following morning. After signing a form waiving his Miranda rights*fn1 , defendant gave the following inculpatory statement to police:
What happened was this thing just got out of hand. I had come home around 3:30 in the morning and laid on the couch after comeing [sic] from the bar. I was sleeping. I heard loud music, woke up, went to the bath room, came back and told [G.J.] why you playing that music so loud? She said it was her house. I got mad and said "I stay here. Where that come from that it's your house?"
We started to argue and then one thing led to another and I picked up the little knife from by the stove. She started yelling and we were tussling and before I knew it we was [sic] on the floor fighting and I stabbed her I am not sure how many times in up by the chest area. I saw the blood. I got up, got my jacket and just left and that's it.
At trial, defendant's testimony regarding the incident was slightly different. He then indicated that he and G.J. argued over the volume of the music, and as he reached to lower the radio volume, G.J. picked up the knife from the countertop. They fought, and he ended up stabbing G.J. After the incident he called his friend, George, and that night, George first drove him to the home of another friend, Regina. Thereafter, they went to a mini-precinct on South Orange Avenue and then to another precinct in the South District. No one at either precinct would take a statement from him because the police had not yet been alerted to an incident and because there were no outstanding warrants for defendant's arrest. The next day, he successfully surrendered himself to police in Newark and gave a statement concerning the incident.
Defendant was charged in Essex County Indictment No. 04-04-01790 with purposeful and knowing murder in violation of N.J.S.A. 2C:11-3a(1), (2) (count one); fourth degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5d (count two); and third degree possession of a knife with an unlawful purpose, N.J.S.A. 2C:39-4d (count three). After trial before Judge Joseph C. Cassini and a jury, defendant was acquitted of the second and third counts and of the murder charge contained in the first count. He was, however, found guilty of the lesser-included offense of aggravated manslaughter under the first count. Thereafter, the court imposed a twenty-two year prison sentence with an eighty-five percent parole disqualifier, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
On appeal, defense counsel asserts the following arguments:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE STATEMENT TAKEN FROM THE DEFENDANT DURING CUSTODIAL INTERROGATION SINCE HE WAS NEVER INFORMED OF THE EXISTENCE OF AN ARREST WARRANT AGAINST HIM.
POINT II: THE TRIAL COURT ERRED BY INSTRUCTING THE JURY REGARDING THE LESSER INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER ARISING OUT OF COUNT I CHARGING PURPOSEFUL/KNOWING MURDER. POINT III: THE TRIAL COURT ERRED IN RULING THAT [S.J.] WAS COMPETENT TO TESTIFY (NOT RAISED BELOW).
POINT IV: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ON THE BASIS THAT IT MADE ITS LEGAL DETERMINATION THAT [S.J.] WAS ...