On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-03-0212.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2008
Before Judges Cuff, Lisa and Lihotz.
Defendant, Joseph M. Campon, was seventeen years old on the date of the incident underlying the charges in this case. A juvenile complaint was first issued, after which defendant was waived to adult court and indicted for (1) first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); (2) third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; (3) fourth-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5d; and (4) third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1). The case was tried to a jury, but a mistrial was declared after the jury was deadlocked and unable to reach a verdict. Defendant then moved for judgment of acquittal on count one. Judge Batten granted the motion and amended count one to charge first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1). We denied the State's motion for leave to appeal from the order acquitting defendant of murder.
Defendant was tried on the amended indictment. On count one, the jury acquitted defendant of aggravated manslaughter, but found him guilty of the lesser-included offense of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1). The jury acquitted defendant of count two, and convicted him of counts three and four. After denying defendant's motion for a judgment notwithstanding the verdict or for a new trial, the judge sentenced defendant on count one to a term appropriate to a crime one degree lower than that for which defendant was convicted, see N.J.S.A. 2C:44-1f(2), of four years imprisonment, subject to an 85% parole disqualifier and three years parole supervision upon release, pursuant to the No Early Release Act. See N.J.S.A. 2C:43-7.2. The judge imposed concurrent terms of nine months on count three and three years on count four.
On appeal, defendant argues:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO ELICIT RELEVANT TESTIMONY INVOLVING THE VICTIM PURSUANT TO N.J.R.E. 404(b).
POINT II THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT PREJUDICIAL AND INADMISSIBLE TESTIMONY PURSUANT TO N.J.R.E. 803(c)(1).
POINT III THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL WITH RESPECT TO COUNT I CHARGING AGGRAVATED MANSLAUGHTER.
POINT IV THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF RECKLESS MANSLAUGHTER WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE.
POINT V THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING POSSESSION OF A WEAPON UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR SUCH LAWFUL USES AS IT MIGHT HAVE INTO COUNT I INVOLVING RECKLESS MANSLAUGHTER.
POINT VI THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We reject these arguments and affirm.
This case stems from the death of nineteen-year-old Christopher Loftus on July 2, 2001 in Cape May. Defendant admitted stabbing Loftus, resulting in his death, but he maintained that he acted in self-defense.
About thirty to forty members of defendant's extended family were spending a one-week vacation in Cape May. Some friends of family members were also included. The group rented a home on Stockton Avenue. Adam Kessler, a seventeen-year-old friend of defendant, was part of the group. During the day of July 2, 2001, the group conducted a scavenger hunt, and as part of the activity, defendant and Kessler wore play wigs.
That evening, at about 10:30 to 11:00 p.m., defendant, Kessler, defendant's sister, Serena Campon, his cousin, Carly Campon, and their friend Ashley Pitts (all aged sixteen), went to an arcade on the promenade. Defendant and Kessler, still wearing their wigs, played video games, while the girls stood nearby. Two boys approached the girls. The boys were intoxicated. They attempted to pick up the girls, suggesting they would take them to a party. The girls declined and were uncomfortable in the situation. One of the boys put his hand on Serena's shoulder. The boys were Loftus and his eighteen-year-old friend, Matthew Small, both Cape May residents.
In an aggressive voice, Loftus shouted to defendant and Kessler, "Where are you fucking faggots from?" Continuing in a belligerent and threatening tone, Loftus said, "Yeah that's what I said, and if you have a problem with it, we can take this outside." Loftus and Small left the arcade, crossed the promenade, and jumped over a railing to the sidewalk along Beach Avenue, several feet below the level of the promenade. As they were leaving, one of the two said words to the effect that they would go where there were no cops around. Defendant and Kessler followed, also jumping over the rail to the sidewalk. The girls remained behind for a time, after which they walked along the promenade to a ramp and then followed in the same direction at a significant distance behind the group of boys.
According to defendant, who testified at trial, his initial reason for following after Loftus and Small was that he expected an explanation for their unprovoked comments and behavior toward him and Kessler. He acknowledged, however, that he realized a fight was a possibility. Loftus and Small were bigger than defendant and Kessler.
Loftus crossed Beach Avenue, followed by defendant, then Small and Kessler. According to defendant and Kessler, when Loftus reached the other side of Beach Avenue, at the corner of Howard Street, Loftus removed a wine bottle from a recycling can. At that time, defendant was in the middle of Beach Avenue, and he now knew it was "fairly certain" that a fight was in the offing. Nevertheless, he continued across the remainder of Beach Avenue and followed Loftus up Howard Street. The two sets of boys continued to exchange hostile comments as they walked. Loftus was calling defendant a "shoobie," meaning an out-oftowner. Defendant acknowledged that there were many people in the arcade and in other business establishments on the promenade that were open. Nevertheless, he did not go back "because the arcade didn't seem to [him] at that point a very safe haven." He contended that was in the general direction of the house his family was renting.
Small and Kessler continued to follow behind defendant. When Kessler passed the recycling can, he removed a wine bottle and carried it with him. A car containing two young men, Michael Copson and George Durante, friends of Loftus and Small, pulled up. Small made a gesture by punching his fist into the palm of his other hand, which was interpreted as a sign that there was going to be a fight, and he may have also said to the boys in the car that there was going to be a fight on the street. Copson and Durante drove a short distance and parked the car, after which they returned to the location of the other four boys.
Two separate physical altercations then took place, one between defendant and Loftus, and the other, across the street, between Small and Kessler. By this time, the three girls were about one-half block away, and they all acknowledged that although they saw a commotion, they could not see what transpired between defendant and Loftus. At some point, they saw Loftus fall to the ground and saw defendant run away. Varying descriptions of the fight between defendant and Loftus were given by defendant, the three boys at the scene and three vacationers who happened to be in the vicinity.
Kessler explained that he was preoccupied with Small, with whom he was paired off. He said Small kept taunting him to hit him with the bottle and backing him up. Kessler continued backing up, crossing the street diagonally, and his field of vision was focused only on Small. Therefore, he did not see what was going on between defendant and Loftus. Kessler finally swung the bottle at Small, missing him, losing his balance and falling to the ground. He lost hold of the bottle and could not say whether it broke when it hit the ground. Kessler said the other two boys, Copson and Durante, then began charging at him. He quickly stood up, grabbing what he believed to be a different bottle from the ground and began waving it to fend off Small. At that point, an individual later identified as Anthony Brown, who testified at trial, came up to Kessler and Small urging them to end their confrontation and telling them that someone was down across the street. That someone was Loftus, who defendant had stabbed. Throughout the entire episode, Kessler did not see what happened between defendant and Loftus.
According to Small, as the four boys crossed the street leaving the promenade, antagonistic and derogatory comments were being exchanged among them, and he believed there was going to be a mutual fight. Small saw Kessler remove a wine bottle from the recycling container as they walked. He acknowledged telling Copson and Durante "that we were going down there to fight." He said the two pairs then squared off with each other. He acknowledged taunting Kessler, challenging him to hit him with the wine bottle. Small testified that, as the two pairs were squared off:
I looked over and I saw that the one that Chris was squared up with pulled out a knife and had it pointed towards Chris. And I kind of shrugged it off and didn't think anything of it and maybe said, like, oh, he's not going to do anything with that or something. And then I turned to the kid that I was fighting and started pushing him and, like, basically telling him to fight me.
I was advancing and he was, like, backing up.
Small said that after he turned away from defendant and started fighting with Kessler, he "didn't see anything else that was going on behind [him]." He then said that either Copson or Durante called out from behind him that Loftus had been stabbed. He turned around and saw Loftus on the ground. Defendant ran away.
Small denied that Loftus had a bottle in his hand before beginning the physical fight with defendant. Although he saw Kessler remove a wine bottle from the recycling can, he did not see Loftus remove one when Loftus walked by that can. When pressed on whether he specifically did not see Loftus holding a wine bottle or whether he only did not remember seeing him with a bottle, this colloquy ensued:
Q: Chris crosses the street. These two kids are following behind. And you're there in the mix, too.
A: I don't remember seeing Chris grab a bottle.
Q: So you don't know how a broken wine bottle got his blood on ...