On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-04-0452.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Simonelli.
Defendant Jonathan K. Norman appeals from his conviction, following a jury trial, for first degree murder, contrary to N.J.S.A. 2C:11-3a(1) (count one); second degree unlawful possession of firearm, contrary to N.J.S.A. 2C:39-4a (count two); and fourth degree aggravated assault with a firearm, contrary to N.J.S.A. 2C:12-1b(4) (count three). Defendant is serving a thirty-year term of imprisonment with a thirty-year period of parole ineligibility.
On appeal, defendant raises the following arguments:
POINT I THE COURT ERRED IN REFUSING TO CHARGE AGGRAVATED MANSLAUGHTER AS A LESSER INCLUDED OFFENSE.
POINT II THE VERDICT OF MURDER WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHICH SUPPORTED ONLY PASSION/PROVOCATION MANSLAUGHTER.
We reject these arguments and affirm.
Defendant and his girlfriend, Taneka Milbourne (Milbourne), were corrections officers at Southwest State Prison. The couple had a child, Jayda, born in 2002. They lived together with Milbourne's two children from a prior relationship. The parties' relationship was volatile, and they eventually separated in October 2002.
After the couple separated, defendant was arrested several times for motor vehicle violations, which he claimed were orchestrated by Milbourne and her cousin, Kevin Milbourne (Kevin), a New Jersey State Trooper. On August 1, 2003, defendant was suspended from work for five days without pay as a result of disciplinary charges brought against him for a second infraction of driving with a suspended license. That evening, defendant called Milbourne to request visitation with Jayda the following day. One of Milbourne's older children called defendant shortly after 5:00 a.m. on August 2, 2003, and informed him that Milbourne would drop Jayda off at defendant's residence on her way to work. Defendant lived with his mother, but she was not present when Milbourne arrived.
According to defendant, Milbourne arrived at approximately 5:50 a.m. and brought Jayda into his apartment. Defendant placed Jayda in a high chair in the kitchen and noticed bruises on her face, "a big red mark on the [left] side of her face[,]" and "scratches on her eye." When he questioned Milbourne about the bruises, she laughed and replied "Fuck you. Don't worry about it[,]" and "it was a cold world, it's going to get colder." After more arguing, Milbourne "smacked [defendant] in the face" with an open hand, and defendant hit her in the mouth. Milbourne then came at defendant "wild[ly], . . . swinging and stuff[,]" and defendant pushed her to the floor, where she hit her head. Milbourne screamed that defendant would lose his job and never see Jayda again. As defendant stood over Milbourne, the pair continued screaming and hitting each other. Defendant admitted that at that point he:
[K]inda got frustrated and pretty much blacked out. And I  ran in the living room to  get the weapon from  under the couch where I kept it. It  was already loaded. And I went into the kitchen and she was still on the floor. And I got over top of her  she grabbed at me and  asked me [to] let her up. But I ...