On appeal from the Superior Court of New Jersey, Law Division, Essex County, 06-03-0737.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Grall.
A jury found defendant not guilty of murder and passion/provocation manslaughter, but guilty of first degree aggravated manslaughter and related weapons offenses. We reverse and remand for a new trial because of the judge's refusal to instruct the jury on self-defense. Consequently, we need not discuss defendant's other points of alleged error.
The pertinent evidence may be summarized briefly. After defendant was arrested on another charge, Audrey Walker and defendant's brother, the victim Kenya Walker, agreed to raise money to get defendant out of jail. But after they raised the necessary funds from defendant's friends, they spent it on rent. Defendant became angry and threatened to kill his brother.
Defendant got out of jail, apparently with the help of others. On July 15, 2005, which was about four months after being released from jail, defendant and Kenya came to an apartment on Seth Borden Terrace in which Leslie Butler and others lived. Butler observed defendant and Kenya arguing, and saw defendant holding a handgun. She overheard defendant say to Kenya, "Why did you pull a gun on me? We're supposed to be family." Butler opened her door, and saw defendant still holding the handgun and acting as if he were very upset. However, as their discussion continued it appeared to her that the men were trying to resolve their dispute. At some point the men came into Butler's bedroom. In front of Butler, Kenya asked defendant to give him the handgun, to which defendant replied, "You think I'm stupid?" and, "You are going to shoot me."
The men then left Butler's bedroom and went into other rooms in the apartment. At some point, the men pulled down the window shades. One or both of the men told Butler to close her bedroom door, which she did. Then Kenya, in a voice that sounded to Butler not like a plea for help, but an expression of exasperation, called, "Officer come get me." Someone must have asked the police to come to the scene because by this time the building was surrounded by police officers.
Butler then heard the sound of the men struggling in the living room, followed by a gunshot and the sound of someone falling to the floor. Defendant came to her a few minutes later and said, "I swear I didn't kill my brother." He then said, "Why did he grab the gun? Why did he grab the gun?" Finally, he said it was an accident. Butler noted that defendant was emotional and had tears in his eyes as he made the above statements. Butler also heard defendant speaking on his cell phone, saying, "I love you. I didn't mean to do it. My brother's dead, come get me." Defendant walked outside, saying to the police, "I just killed my brother. Just put me in the car." Defendant was arrested and taken away, and the police secured the scene. The handgun was not found.
The medical examiner concluded that the cause of death was a single gunshot wound in Kenya's chest.
Defendant concedes that he did not provide the State with a pretrial notice of self-defense, as is required by Rule 3:12-1. But that rule does not prohibit self-defense from being raised at trial. Rather, it allows the judge to place reasonable restraints on an untimely assertion of the defense "as the interest of justice" may demand.
Shortly before trial, while other issues were being addressed, defense counsel indicated that the evidence may show self defense, and if it did, the appropriate charge should be given. The judge indicated that "it seems clear . . . that whether the shooting was accidental or in self defense appears to be a genuine issue that" may be in dispute. ...