On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-02-0028.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 14, 2008
Before Judges R. B. Coleman, Sabatino and Simonelli.
Tried as an adult after a juvenile waiver to the Law Division, defendant Donte Williams was convicted of aggravated manslaughter of Che Broadus ("Broadus"), N.J.S.A. 2C:11-4(a) (count one); attempted murder of Albert Windham ("Windham"), N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count two); second-degree aggravated assault of Windham, N.J.S.A. 2C:12-1(b)(1) (count three); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count five); and knowing possession of a defaced weapon, N.J.S.A. 2C:39-9(e). With respect to count one, the jury specifically acquitted defendant of Broadus's murder, instead finding him guilty of aggravated manslaughter as a lesser-included offense. The trial court sentenced defendant, after appropriate mergers, to a twenty-five-year term on count one and a twenty-year consecutive term on count two, plus various fines and penalties.
On appeal, defendant principally contends that he is entitled to a new trial on count one because the court erred in failing to correct its charge to the jury explaining the pertinent lesser included offenses of murder, despite defense counsel's timely attempt to have the charge corrected to conform with the model criminal charges. Defendant argues that, as a consequence of the misstatements in the charge, the jury was faced with an improper "all or nothing" choice between convicting him of aggravated manslaughter or acquitting him of all lesser-included offenses arising from Broadus's death. We agree with defendant's contentions as to this critical flaw in the jury instructions, and remand for a new trial as to the charges in count one respecting the Broadus homicide. However, we reject defendant's contentions relating to the other offenses for which he was found guilty. We also reject defendant's challenges to the severity of his sentence, except for the uncontested need to correct certain duplicative fines and penalties.
This appeal arises out of the shooting of two young men in an automobile, Broadus and Windham, in the early morning hours outside of a dance club. Broadus died from his gunshot wounds. Windham was injured in his left hand, but survived. The State's proofs at trial depicted the following pertinent chronology of events.
On the night of August 28, 2004, Windham, Broadus, Antoine Walker ("Walker"), Antwan Johnson ("Johnson"), and several other friends went to Teen Night at Club Krome, a dance club in Sayreville. That same night, defendant also went to Club Krome, accompanied by Shawn Morris-Greene ("Morris-Greene") and Osbourne Mayers ("Mayers"). Defendant at the time was sixteen years old.
At some point inside the dance club that evening, Morris-Greene and Johnson bumped into each other, and engaged in a "stare off." Johnson, Windham, and Walker then walked over to defendant and Morris-Greene, and an argument ensued. During that confrontation, Windham and defendant got into what was described as a "gang-related" altercation, and Windham noticed a red bandana*fn1 in defendant's hand. Morris-Greene then pulled out a pocket knife and told the others to "back off." The club's bouncers separated the two groups. Johnson told the bouncers that Morris-Greene had a knife. Consequently, Morris-Greene was ejected from the club. Johnson also left the premises early, but Broadus, Windham, and Walker remained at the club until it closed.
Shortly after the altercation with Johnson's group, defendant left the club with Lamar Danzey ("Danzey"). They met up with Morris-Greene, who had been waiting outside. The three young men left together in Danzey's car. Danzey then drove defendant and Morris-Greene to defendant's house in Rahway.
While Danzey and Morris-Greene remained outside, defendant went into his house. He returned a few minutes later wearing a dark hooded sweatshirt, a blue basketball jersey, and a black bandana.*fn2 After defendant placed these items in the trunk, the trio headed back to Club Krome.
When defendant, Danzey, and Morris-Greene arrived back at Club Krome, Danzey parked his car across the street behind a restaurant. Danzey went inside the club, while defendant and Morris-Greene remained in Danzey's car.
Sometime between 12:30 a.m. and 1:00 a.m., the club closed. Danzey returned from the club to his car with Faith Taylor ("Taylor") and Jennifer Muriel ("Muriel"). Danzey testified that at this point, defendant instructed him to "wait for him." Consequently, Danzey, Taylor, Muriel and Morris-Greene all remained in Danzey's car. Danzey, Muriel and Morris-Greene testified that they then watched defendant walk toward Club Krome. All three of those witnesses stated that he was then wearing a blue jersey.*fn3
At about the same time, Broadus, Windham, and Anthony Stover ("Stover") walked out of the club and headed for Broadus's car. That vehicle pulled out of the club's parking lot, onto Old Spye Road, and stopped at a traffic light.
Broadus was driving, Windham was in the front passenger seat, and Stover was in the rear passenger seat.
Suddenly, Windham heard gunshots coming from his right. Windham turned to his right and saw a male wearing a black hooded sweatshirt with the hood up and a bandana, standing about three to four feet from the passenger side window, shooting at Broadus's car. Several other club patrons and a bouncer similarly testified that the shooter was wearing a hooded sweatshirt and a bandana.
About three or four shots were fired. Broadus was struck in the chest, and died shortly thereafter as a result of his wounds. Windham was shot in the left hand, but eventually recovered.
Following the gunshots, defendant was observed running back towards Danzey's car, which was still parked across the street from the club. Danzey then drove defendant and Morris-Greene to Frank N' Fries, a local restaurant. Morris-Greene testified that he saw defendant place the rolled-up sweatshirt and jersey in a plastic bag and leave it near a garbage can at the restaurant. Morris-Greene further testified that he saw Mayers at Frank N' Fries, but that he did not tell Mayers at that time anything about the shootings.
Four days later on September 1, defendant was arrested at his home. That same day, defendant's bedroom was searched, pursuant to a search warrant. During the course of that search, the police found a fully-loaded .380 caliber semi-automatic handgun, wrapped in a blue bandana under the defendant's bed with one round in the chamber. The gun was defaced. Additionally, the police found in defendant's bedroom a spent shell casing, two bandanas, a blue basketball jersey, a black t-shirt with a white t-shirt underneath it, and a dark hooded sweatshirt. A forensic ballistics expert who testified for the prosecution determined that the bullet removed from Broadus's chest and the bullets removed from his car had been shot from the same gun that the police found in defendant's bedroom.
Defendant did not testify at trial. He did not present any witnesses, although he had unsuccessfully attempted to subpoena Mayers, who had given a tape-recorded statement to the police.*fn4
In his summation, defense counsel contended that the State's witnesses had incorrectly identified defendant as the shooter. He also characterized the shooting of Broadus as only a "reckless" act, rather than as a deliberate attempt to take his life.
On its second day of deliberations, the jury convicted defendant of offenses relating to all six remaining*fn5 counts of the indictment. With respect to count one, the jury found defendant not guilty of the murder of Broadus, but instead convicted him of aggravated manslaughter as a lesser-included offense. As we have already noted, defendant ...