On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-08-1621B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Gilroy and Chambers.
Defendant Kevin B. Rogers, indicted for the murder of Royden Parks, N.J.S.A. 2C:11-3(a)(1) and (2), was convicted by a jury of the lesser included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a). He was also convicted by the jury of possession of a weapon (a hammer) for an unlawful purpose, N.J.S.A. 2C:39-4(d), and possession of a weapon (a frying pan) for an unlawful purpose, N.J.S.A. 2C:39-4(d). We affirm.
On May 10, 2005, defendant and the victim, Royden Parks, became involved in a physical altercation at defendant's home. During the fight, defendant hit Parks in the head with a hammer and frying pan, fracturing Parks's skull and killing him. Defendant attempted to clean up the blood in his house from the killing, and he dragged Parks's body to the street where it was discovered by a passerby.
Physical evidence at the scene confirmed that defendant had killed Parks in defendant's house. The police found drag marks at the rear of defendant's house. After obtaining a search warrant, law enforcement officers entered the house and found blood stains on the floor, carpeting, and walls. DNA testing of the blood on a hammer, carpet, and blue jeans found in defendant's house matched that of Parks. The medical examiner testified that Parks's head had multiple scalp lacerations and skull fractures, and he found crescent shaped wounds consistent with a hammer.
At trial defendant asserted the claim of self-defense. In his tape recorded statement to the police on May 13, 2005, and in his testimony at trial, defendant contended that Parks had been the aggressor. According to defendant, Parks, who was a person known to him, had been using defendant's yard to stash drugs, despite defendant's objections. On the day of the death, Parks entered defendant's residence uninvited and when he was asked to leave, an argument erupted. The confrontation escalated into a fight when Parks grabbed and pushed defendant. During the course of the ensuing struggle, Parks choked defendant and threatened to kill him, so that defendant became fearful for his life. Defendant maintained that he had to use force to defend himself. To buttress his assertion that Parks was the aggressor, defendant presented the testimony of three witnesses who testified to Parks's aggressive character.
Defendant also sought to present the testimony of Calvin Gunn to further prove Parks's violent and aggressive character. He sought to introduce this evidence in order to support his self-defense theory and to support a finding of the lesser included offense of manslaughter in the event his claim of self-defense was rejected. In a pretrial taped interview, Gunn had stated that in April 2004, he told Parks to stop selling marijuana at Gunn's grandmother's house. When Parks failed to stop, Gunn disposed of the marijuana and told Parks that he had done so. Thereafter, Parks assaulted and robbed Gunn. While Gunn filed a complaint, it was eventually dismissed, due to Gunn's nonappearance when he moved to a new address and did not receive the trial notice. On another occasion, Parks pulled a gun upon seeing Gunn, and in a third incident, Parks and his cohorts attempted to assault Gunn. The trial court ruled that defendant would not be allowed to present this testimony from Gunn, ruling that this evidence was excluded under N.J.R.E. 404(a)(2) and (b) and N.J.R.E. 403.
At sentencing, the trial court merged the two convictions for possession of a weapon for unlawful purposes into the aggravated manslaughter conviction and sentenced defendant to a term of twenty years in State prison. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, defendant must serve eighty-five percent of this sentence before being eligible for parole. He is also subject to five years of mandatory parole supervision. The court also assessed the requisite monetary penalties and ordered restitution in the sum of $3,116.
In this appeal, defendant contends that the trial court's evidentiary ruling excluding Gunn's testimony was in error and warrants reversal of the conviction and a new trial. Specifically, defendant raises the following points on appeal:
THE TRIAL COURT ERRED BY EXCLUDING THE TESTIMONY OF CALVIN GUNN REGARDING PARKS' ASSAULTS UPON HIM PURSUANT TO N.J.R.E. 404(a)(2), 405, 403 and AGUIAR*fn1 BECAUSE TESTIMONY REGARDING SPECIFIC INSTANCES OF CONDUCT IS EXPRESSELY [SIC] ALLOWED WHEN CHARACTER ...