On appeal from the Superior Court of New Jersey Law Division, Essex County, 03-02-651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2007
Before Judges Stern, A.A. Rodríguez and C.L. Miniman.
Defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4a(1), as a lesser-included offense to murder, and of unlawful possession of a weapon, N.J.S.A. 2C:39-5d. He was found not guilty of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The weapons conviction was merged into the homicide, and defendant was sentenced thereon to twenty years in the custody of the Commissioner of Corrections with 85% to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On this appeal defendant argues:
POINT ONE: DEFENDANT'S MISTRIAL MOTION WAS PROVOKED BY PROSECUTORIAL MISCONDUCT[.] A RETRIAL WAS BARRED BY PRINCIPLES OF DOUBLE JEOPARDY AND FUNDAMENTAL FAIRNESS. U. S. CONST. AMENDS V, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 11.
POINT TWO: THE TRIAL COURT ERRED IN NEGLECTING TO INSTRUCT THE JURY ON IMPERFECT SELF-DEFENSE. (Not Raised Below)
POINT THREE: BECAUSE THE INSTRUCTIONS GIVEN TO THE JURY WERE CONFUSING AND BECAUSE THE CHARGES RELATING TO THE KILLING WERE PRESENTED SEQUENTIALLY ON THE VERDICT SHEET, THE JURORS WERE PERFORCE DIRECTED TO CONSIDER PASSION/PROVOCATION MANSLAUGHTER ONLY IF THEY FOUND THE DEFENDANT NOT GUILTY OF MURDER, IN VIOLATION OF STATE V. COYLE. (Not Raised Below)
POINT FOUR: THE ADMISSION OF A HIGHLY PREJUDICIAL, UNAUTHENTICATED LETTER SUPPOSEDLY WRITTEN BY THE DEFENDANT AFTER THE INCIDENT DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL.
POINT FIVE: THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE AND MUST BE REDUCED.
In his pro se supplemental brief, defendant also argues:
POINT I: THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION GUARANTEE A CRIMINAL DEFENDANT THE RIGHT TO A TRIAL BY AN IMPARTIAL JURY. THEREFORE, A DEFENDANT IS ENTITLED TO A JURY THAT WILL DECIDE THE CHARGE ACCORDING TO THE EVIDENCE PRESENTED IN COURT AND A JURY THAT IS FREE OF OUTSIDE INFLUENCES. STATE V. WILLIAMS, 93 N.J. 39, 60, 459 A.2d 641 (1983).
It is undisputed that, on May 23, 2002, defendant stabbed Rajhana Young, his girlfriend,*fn1 to death with an eight-inch butcher knife. Defendant claims that he did so in self-defense. The defendant's first trial ended upon defendant's motion for mistrial. The testimony at the second trial reveals the following:
According to defendant, while he was sleeping, Rajhana woke him up by kicking his feet and telling him to get up. Defendant testified that after he got up and went into the bathroom, Rajhana followed him into the bathroom and "pushed the door" which led to a "shoving match." Then defendant claims Rajhana "got mad, [and] start[ed] hitting [him] on top of [his] head." According to defendant, after he pushed Rajhana away, she went into the kitchen, "grabbed a knife," and "stabbed at him" in the chest. Defendant testified that he then "pushed [Rajhana] to the wall," while she was "[s]till like jabbing at [him] with the knife" and he received a "jab wound to [his] chest." However, defendant admitted on cross-examination that he did not require any stitches for the wounds that he received.
Defendant further testified that in holding Rajhana by the wrist and the neck, he was "[j]ust trying to tell [Rajhana] 'Put the knife down.'" Nevertheless, when the police arrived at the door, Rajhana began to yell "'[h]e's killing me. Help me. He's killing me.'"
According to defendant, while they were "tussling," Rajhana "like jabbed at me," he "push[ed her] away [and] the knife went in." Defendant further testified that the knife "[h]it her somewhere up on the head [and] she fell into [him]."
After Rajhana was stabbed, defendant "panicked" and called his mother. However, the police were at the front door by then, and defendant was unable to open the door immediately on their arrival because he was still struggling "for [his] life" with Rajhana. When he was finally able to respond, he "[o]pened the door, the police rushed in," and threw him down. He immediately told the police that "she stabbed me."
Around midnight the night Rajhana died, Christine Olds, a neighbor of Rajhana's, heard "a bang or something falling against the wall" that she and Rajhana "shared." Olds heard Rajhana say "'I am sorry, are you okay? Are you all right?'" Olds testified that she believed it was Rajhana who pushed defendant against the wall because of the fact that Rajhana was apologizing. However, Olds thereafter heard a "scuffling noise" after which Rajhana said "No." Olds testified that "[i]t was almost like a defensive no and then [she] heard [Rajhana] saying 'Help me.'" Believing that Rajhana was calling out for help, Olds called the police.
Olds further testified that "[t]wo or three" police officers showed up outside Rajhana's apartment and attempted to get into her apartment for "[a]bout twenty minutes" before they were able to enter. He believed defendant eventually let them in. Olds overheard defendant's telephone conversation with his mother where he declared that he "'didn't do anything.'"
Officer Robert Dwight of the Newark Police Department was dispatched to the scene at 12:13 am. When he arrived at the apartment, he "knocked on the door," "identified [himself] as police, and asked to open the door." Dwight testified that he banged on the door calling out "'police'" for about "eight [or] nine minutes." The superintendent was called to the scene, and attempted to help the officers get into the apartment, but he was unable to find the correct key.
While waiting outside the apartment, Officer Dwight heard a female voice saying "'You're killing me' in a real soft voice, real low voice." Thereafter, Dwight started to kick the door open. Dwight kicked the door three times before he "heard a noise, some kind of a click . . . and then [the door] came open on the third kick." Officer Dwight recalled testifying before the grand jury that the bolt of the door was opened.
Upon entering the apartment, Officer Dwight observed defendant "backing up" "at a slow pace." Dwight "pulled him on the ground and  handcuffed him." Dwight then saw Rajhana lying on the floor with her head and chest area surrounded by blood. He asked defendant what happened, and he responded "'[s]he cut me.'" Dwight acknowledged that defendant had "some small cuts or scratches like on his chest," but he was not bleeding. Officer ...