On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 04-07-2685-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and Yannotti.
Tried to a jury, defendant was convicted of first-degree aggravated manslaughter as a lesser-included offense of murder, N.J.S.A. 2C:11-4(a), and of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was found not guilty of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The trial court sentenced defendant to an aggregate term of eighteen years in prison, subject to the provisions of the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On the night of March 8, 2004, Amir Wilkins was driving a vehicle in the vicinity of 18th Avenue and Alexander Street in Newark. Witnesses testified that they assumed that the car was stolen because of the reckless manner in which he was driving--speeding and doing "donuts." That assumption later proved to be correct. There was also testimony that someone yelled out to the driver that there were children in the area. Two witnesses, Dorothea Adu and Catasha Newsome, had gone with friends to a Chinese restaurant to get food; Adu was inside the restaurant and Newsome was standing outside when they heard four to five gunshots. One of the bullets struck Wilkins in the head, killing him.
Immediately after the shooting when police responded, both Adu and Newsome denied any knowledge about what had happened, and they left the scene. Later, they both identified defendant, whom they recognized from the neighborhood and knew as "Rell," as the shooter. Newsome admitted on cross-examination that she was intoxicated at the time from smoking marijuana. Defendant testified and denied any involvement in the incident. He said he was in a different area of the city, with his friend Yakeema and her sister Shuby.
Through counsel, defendant raises the following contentions:
JURY INSTRUCTIONS SHOULD HAVE BEEN GIVEN ON DEFENSE-OF-ANOTHER (Raised Below) AND PASSION/PROVOCATION MANSLAUGHTER (Not Raised Below)
B. Passion/Provocation Manslaughter
THE TRIAL JUDGE SHOULD NOT HAVE ALLOWED THE PROSECUTOR TO CROSS-EXAMINE OR ARGUE TO THE JURY REGARDING DEFENDANT'S FAILURE TO CALL A FORMER FRIEND AND HER SISTER AS WITNESSES TO SUPPORT HIS ALIBI; FURTHER, A CLAWANS INSTRUCTION TO THE JURY ON THE SAME SUBJECT WAS INAPPROPRIATELY GIVEN, AND WAS NOT JUSTIFIED BY THE TRIAL JUDGE'S ...