On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-01-0038 and 05-06-0861.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2009
Before Judges Lisa, Baxter and Alvarez.
Defendant Rashod Eato appeals from his August 25, 2006 conviction, following a trial by jury, on charges contained in two indictments that were tried back-to-back by the same jury. On Indictment 06-01-0038, defendant was convicted of second- degree conspiracy to commit the crimes of second-degree aggravated assault and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:5-2, 2C:12-1b(1) and 2C:39-4a (count one); second-degree conspiracy to commit the crimes of unlawful possession of a firearm and fourth-degree aggravated assault, N.J.S.A. 2C:5-2, 2C:39-5b and 2C:12-1b(4) (count two); first-degree aggravated manslaughter as a lesser included offense of murder, N.J.S.A. 2C:11-4a (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four). On Indictment 05-06-0861, defendant was convicted of second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7b.
The judge sentenced defendant separately on each of the four inchoate crimes that were the object of the conspiracy in the two counts of Indictment 06-01-0038. The judge sentenced defendant to a ten-year term of imprisonment with a five-year parole disqualifier for his conviction on the charge of conspiracy to commit second-degree aggravated assault. The judge imposed an identical sentence for second-degree conspiracy to possess a firearm for an unlawful purpose; five years imprisonment with a two and one-half year term of parole ineligibility for conspiracy to unlawfully possess a weapon; and an eighteen month term of imprisonment with a nine-month parole ineligibility period for conspiracy to commit fourth-degree aggravated assault by pointing a firearm. All four of the conspiracy sentences were ordered to be served concurrently.
On count three of Indictment 06-01-0038, the judge sentenced defendant to a thirty-year term of imprisonment, with an eighty-five percent period of parole ineligibility as required by the No Early Release Act, N.J.S.A. 2C:43-7.2. On count four, the judge imposed a ten-year term of imprisonment with a five-year period of parole ineligibility. Sentences on all counts were ordered to be served concurrently with each other. All other counts were dismissed.
On Indictment 05-06-0861, the judge imposed a ten-year term of imprisonment with a five-year term of parole ineligibility, consecutive to the sentence imposed on Indictment 06-01-0038 and consecutive to the parole violation sentence defendant was then serving.
We reject defendant's contention that the judge erred: by refusing to charge the jury on second-degree passion/provocation manslaughter as a lesser included offense of murder; by charging the jury on conspiracy to commit crimes not identified in the indictment and by including co-conspirators not named in the indictment; by denying defendant's motions for acquittal or for a new trial on the conspiracy counts; by permitting a State's witness to testify in shackles; and by imposing an excessive sentence. We agree, however, with defendant's contention that the conspiracy counts should have been merged with the related substantive offenses, and remand for the entry of an amended judgment of conviction to accomplish that result. In all other respects, we affirm defendant's conviction and sentence.
On March 22, 2005, David Sanders and Nadirah Robinson lived together with their two children on Reservoir Avenue in New Brunswick. The two had been romantically involved for eight years. Nadirah knew defendant Rashod Eato from high school, and had dated him years earlier. Through defendant's friendship with Nadirah, defendant also knew her younger brother, Yasin, who was eighteen years old in March 2005.
On the night of March 22, 2005, at approximately 8:00 p.m., Shawn Hall observed a loud argument between defendant and Sanders. Hall had known defendant all his life, and Sanders for four or five years. He described his relationship with defendant as "a lot better than he and Dave['s] relationship." According to Hall, defendant told Sanders that he "f---ed the girl," meaning "Dave's girlfriend, Nadirah." After defendant made that remark, Sanders told defendant he was "going to f---[him] up." According to Hall, Sanders made that threat numerous times. Hall also testified that Sanders told defendant he was not tough enough to fight back.
Hall did not see either defendant or Sanders produce a weapon during that incident, which he described as having occurred on Pine Street. Hall also testified that defendant's cousin Brian Butler was present. While the argument between Sanders and defendant was in progress, Nadirah drove up and pled with Sanders to leave because defendant was trying to provoke him. Eventually, Sanders left the scene with Nadirah.
Sanders's sister Viola also was present during the time her brother was arguing with defendant. She was standing next to defendant and was able to hear him make a call from his cell phone to co-conspirator Thomas Yates. According to Viola, defendant told Yates that David Sanders was "wildin" and that Yates should "bring them things." Although defendant did not use the word "gun," Viola knew he was referring to a gun because she "h[u]ng around them all the time." When the prosecutor asked her whether it was merely an "assumption on her part that defendant's reference to 'bring them things'" meant a gun, she answered "no, I knew for a fact what it meant."
After defendant and Sanders had already left Pine Street, Viola continued to walk back to her brother's and Nadirah's apartment on Reservoir Avenue. While walking, she saw her brother Yasin walking up the street in the direction of defendant, Butler, co-conspirator Alkawon James, and Yates. Viola was able to see Yasin exchange some words with defendant and his group, although she could not hear what was said. She did see, however, that defendant took a gun from his cousin Brian Butler. As soon as defendant did so, Yasin immediately put his hands up. Viola heard gunshots ring out.
Although Viola was not able to see who fired first, she was able to determine that defendant and Yasin both fired shots. She was also able to determine that the gun defendant used was silver in color and that it was defendant, rather than one of the others in the group, who shot Yasin. Defendant survived his wounds; Yasin did not.
Sanders was not the only witness to place defendant at the scene of the shooting. The State also presented Ikeem Higgins, defendant's cousin, who was at that time, according to his testimony, incarcerated and awaiting trial on a drug distribution charge. Higgins testified that on the night in question he was visiting his sister and brother-in-law. When the sounds of gunfire erupted outside the window, the three peered out and saw defendant lying on the ground. While defendant was on the ground, Higgins saw a man, presumably Butler, reach under a nearby vehicle, remove a gun, and start firing.
After the shootings, detectives searched the area of Reservoir Avenue and found shell casings from .380 caliber and nine millimeter handguns. When the medical examiner conducted an autopsy on Robinson, a loaded .380 magazine was located in the left pocket of his sweatshirt. A ballistics analysis revealed that all of the .380 caliber shell casings were fired out of only one gun, as were the nine millimeter casings.
After defendant was apprehended, he provided a statement to police in which he claimed that as he and Butler walked down Reservoir Avenue, he saw a young black man, about eighteen to nineteen years old, approaching him from the other end of the street. Defendant claimed that he heard three gunshots and one of the bullets nearly hit him in the foot. Defendant also denied having a gun in his possession on the night Robinson was murdered, and maintained that he came to Reservoir Avenue only to visit with family. He did, however, admit during the interview that he went to Reservoir Avenue to "shoot a fair one," which he described as a fair fight.
After the State rested, defendant moved for a judgment of acquittal on the conspiracy counts. He contended there was insufficient evidence to demonstrate that he had entered into an agreement with others to commit the crime of assault and the weapons-related offenses. He asserted that because the victim, Yasin Robinson, was not involved in the original altercation at the park near Pine Street, there could be no conspiracy to murder Robinson and no intent to kill him.
The judge denied defendant's motion for acquittal, reasoning that when the evidence was viewed in the light most favorable to the State, as State v. Reyes*fn1 required, the evidence was sufficient to demonstrate that defendant conspired with others to commit the crimes specified in counts one and two of the indictment.
During the charge conference, the judge agreed to charge the jury on self-defense. Defendant also asked for a jury instruction on passion/provocation manslaughter, arguing that there was a "confrontation" during which Robinson "was waving his hand and so forth and so on." Defense counsel maintained that Robinson's use of a gun was the provocation that entitled defendant to such a jury instruction. After considering the arguments from both sides, the judge advised the parties that he ...