On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-09-3000.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Grall.
Defendant Eugene R. Wilson appeals a final judgment conviction and sentence. The grand jurors charged defendant with murder, N.J.S.A. 2C:11-3(a)(1)-(2); felony murder, N.J.S.A. 2C:11-3(a)(3); and first-degree robbery, N.J.S.A. 2C:15-1. A jury found defendant not guilty of those charges but guilty of the lesser included crimes of reckless manslaughter, N.J.S.A. 2C:11-4b(1), and theft, N.J.S.A. 2C:20-3a. The judge sentenced defendant as follows: for reckless manslaughter, a ten-year term of incarceration, eighty-five percent to be served without possibility of parole, and a three-year term of parole supervision, N.J.S.A. 2C:43-7.2; and for theft from the person, a consecutive, five-year term of incarceration, N.J.S.A. 2C:20-2b(2)(d) and N.J.S.A. 2C:20-3a. We affirm defendant's conviction for manslaughter. Because the question whether this theft was "from the person" was not submitted to the jury, we reverse that conviction and remand for further proceedings.
Dyneise Tucker, who was then ten years of age, and her friend, Gloria McCall, witnessed the crime. They both knew defendant.
The girls saw defendant and Joseph Hoff standing on Williams Street in East Orange. The men were near the entrance to Rowley Park. Logs placed at the entrance of the park block vehicular traffic.
Tucker saw defendant and Hoff argue. Both Tucker and McCall saw defendant hit Hoff, Hoff fall to the ground and Hoff hit his head on the logs. Defendant kicked Hoff while he was lying on the ground in the head and body; his body was shaking. Defendant reached into Hoff's pockets, removed a wallet, took credit cards and other papers and left the area without the wallet, which he threw on the ground.
Hoff was taken to the hospital by paramedics. He died the following day.
An autopsy disclosed bruises on Hoff's right eyelid and right upper lip, and on the left side of his neck and jaw. There was a scrape on his right lower lip. There were no bruises or injuries indicating that Hoff had been kicked or punched in the torso and no offensive or defensive injuries. The autopsy of Hoff's brain disclosed a subarachnoid hemorrhage and an intraventricular hemorrhage, both occurring less than twenty-four hours before his death.
In the opinion of the medical examiner, the hemorrhages were caused by blunt force trauma. The medical examiner, who acknowledged that he was told that Hoff had been beaten, concluded that Hoff's death was a homicide attributable "to blunt force trauma of the head sustained during a beating." He admitted that the hemorrhaging found in Hoff's brain could have been caused by a fall to the ground, but he found no fracture of the skull that would be consistent with a fall that led one to strike his or her head against a hard surface.
Hoff's blood alcohol level was .184. He had ingested cocaine.
When Wilson was arrested on the night of the incident he had a swollen eye and scratches on both sides of his hands and arms. After receiving the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966) and waiving his rights, he gave the police an account of the incident. According to defendant, he, "Ab" Adams and Hoff were sitting on the logs at the entrance to Rowley Park. Hoff screamed in Adams's face, stood up and "verbally assault[ed]" defendant. When Hoff got in his face, defendant could smell the alcohol on his breath. Hoff "bumped" defendant in the chest, and defendant hit him in the chin. Hoff fell. Defendant never kicked him and did not take anything from him.
On the basis of the foregoing evidence, the jurors acquitted defendant of murder, felony murder and robbery and found him guilty ...