On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-04-2417.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2009
Before Judges Lisa, Baxter and Fall.
Defendant Eugene M. Wilson appeals from his April 7, 2006 conviction, following a trial by jury, on charges of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), as a lesser-included offense of murder, (count one); third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2 (count four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count five); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count six); and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts seven and eight).*fn1 On count one, the judge imposed a twenty-seven year term of imprisonment, subject to an eighty-five percent parole ineligibility term, as required by the No Early Release Act (NERA).*fn2 On counts four and five, he imposed five-year terms of imprisonment, concurrent to each other and to count one, and on count six imposed a concurrent eighteen-month term. Five-year terms of imprisonment were imposed on counts seven and eight, concurrent to each other, but consecutive to the sentence imposed on count one. Appropriate fines and penalties were imposed.
We reject defendant's claim that his seizure disorder and resulting memory loss required the judge to sua sponte charge the jury on diminished capacity. We likewise reject his contention that the evidence presented to the jury was insufficient to demonstrate that he knew the victim's young children were present in the apartment when he murdered their mother, and that the judge's refusal to dismiss the endangering the welfare of a child conviction was therefore error. We do, however, accept defendant's contention that under the facts presented at trial, his conviction on count four for endangering an injured victim cannot be sustained, because, as the State acknowledges, the victim was either already dead, or at a minimum unable to be saved, at the time he left her apartment. Other than agreeing that counts five and six should have been merged with count one, we reject the sentencing claims defendant advances. We thus affirm defendant's conviction on counts one, seven and eight, but remand for the entry of an amended judgment of conviction merging counts five and six with count one and entering a judgment of acquittal on count four.
Defendant and the victim, Rosetta,*fn3 developed a personal relationship early in 2003 while Rosetta worked as a health aide in the home of defendant's mother. Defendant moved into Rosetta's apartment and came to know her eight-year-old son. However, because defendant drank excessively and smoked crack cocaine, Rosetta never gave him a key to the apartment, only letting him inside if he was not high or intoxicated.
Later that year, Rosetta became pregnant with defendant's child, but in June 2003, three months before the baby was born, she asked defendant to move out, which he did. Shortly thereafter, Rosetta met Antonio Tharp and the two began a relationship. In late November, approximately two weeks before Rosetta's death, Tharp stayed overnight at Rosetta's apartment. While he was there, defendant repeatedly banged on the bedroom window and rang the doorbell while calling Rosetta's name. After Rosetta asked Tharp to address the situation, he went outside and saw defendant at the bedroom window. Defendant asked Tharp if Rosetta was there, to which Tharp responded that Rosetta was present and he was living with her. Defendant answered, "Tell that bitch to give me my clothes and my bag." Tharp told him to retrieve them the next day. Defendant replied, "[T]ell that bitch I'm going to kick her ass. You must be the father of that bitch's baby."
Two weeks later, on December 9, 2003, after Rosetta put her two children to bed, she closed the bedroom door and went into the living room. Her eight-year old son, who was in the bedroom and testified at trial, heard a knock at the door. Rosetta answered, and her son, who recognized defendant's voice, heard defendant enter the apartment and begin to argue with his mother. The child heard Rosetta tell defendant he had been drinking and order him to leave the house, which was the last thing the child heard before falling asleep. When he awoke the next morning, he heard his half-brother crying from his mother's bed. He found his mother on the couch, and returned to his bedroom, where he remained until Tharp arrived later that afternoon. Tharp had become alarmed after learning that Rosetta had never dropped the baby off at the babysitter's house.
Tharp testified that upon his arrival, the eight-year old, who was crying and "very terrified," blurted out that his mother was dead. Tharp entered and saw Rosetta sitting on the sofa with stab wounds all over her body. After Tharp discovered that Rosetta had no pulse, he found the baby crying and soaking wet.
Upon arrival, police observed stab wounds on Rosetta's neck and chest and numerous crescent-shaped puncture wounds on her abdomen. Investigation revealed no evidence of forced entry into the apartment and no indication of a struggle. Police found a vegetable peeler in the sink and a box cutter hidden underneath a sofa cushion. An assistant medical examiner testified that the crescent-shaped wounds were consistent with the shape of the vegetable peeler. He opined that the absence of blood splatter in the apartment signified that Rosetta was "essentially medically dead" at the time most of the sixty-five stab wounds were inflicted, and that Rosetta "just went straight into cardiac standstill" and was incapacitated "very early on" during the attack.
Defendant gave his first statement to police that evening, describing his relationship with Rosetta and the events that took place at her apartment two weeks earlier. He admitted directing Tharp to tell Rosetta that he intended to "kick her ass." Defendant also told investigators that on the night of December 8, 2003, the night before Rosetta's death, he slept in an abandoned car parked outside his mother's house. The next night, December 9, 2003, he smoked crack cocaine twice and consumed alcohol. He claimed he slept at an unnamed friend's house for a part of that evening, later returning to the car and sleeping there.
In a second interview conducted in the early morning hours of December 11, 2003, defendant initially denied being at Rosetta's apartment on the night of December 9, 2003. However, after approximately forty-five minutes, Investigator John Greer recalled defendant's mother telling him that defendant was prone to epileptic seizures. Greer asked defendant if it was possible that he had such an episode at Rosetta's house and did not remember being there. According to Greer, defendant responded, "Yes, I guess that could have been possible. Maybe I was there and I just don't remember it." After further questioning, defendant acknowledged he had been present in Rosetta's apartment on the night she was murdered. Greer's testimony described defendant's statement that: he was sleeping in his car, smoking crack in his car. [He] [w]ent to [Rosetta's] house because of his demeanor the week before. [He] [w]as invited into the house. [He] [w]as asked to leave. [He] [w]ent into the bathroom, smoked more crack cocaine, and then came out and [did]n't remember much after that other than waking up, seeing that [Rosetta] was bleeding in the area of the neck, and running out, and the fact that [Rosetta] was dressed in a half top at the time and shorts.
Defendant then provided a tape-recorded statement that was consistent with the statements he had made during the pre-taped interview that we have already described. At the conclusion of the taped statement, when Greer asked defendant why he originally denied being at Rosetta's apartment on December 9, 2003, defendant said "he was afraid of the consequences of being involved with her death."
Shortly after the tape-recorded statement was concluded, Investigator Ronald Moten observed defendant fall to the floor and say "I'm having another one. I'm having another one. . . . It's happening again." Greer, who was also an Emergency Medical Technician (EMT), went inside the room and noted that defendant was conscious and alert, had a normal pulse, was not experiencing labored breathing and appeared to be "okay." Greer testified that "in an abundance of caution" 9-1-1 was called even though defendant did not appear to be experiencing trauma or "any type of episode."
Steve Skipton, an EMT who testified at trial, responded to the 9-1-1 call and, after examining defendant, confirmed that, although defendant was "a little agitated," he had normal vital signs, was alert and oriented, was not experiencing any pain and did not appear to be in any distress. Defendant was transported to Cooper Medical Center, where he was examined, given Dilantin, a ...