On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-02-0192.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Lisa, Baxter and Alvarez.
Tried to a jury, defendant Moses Lockett, was convicted of second-degree passion provocation manslaughter,*fn1 N.J.S.A. 2C:11-4b(2) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4) (count four); second-degree possession of a weapon, a firearm, for an unlawful purpose, N.J.S.A. 2C:39-4a (count six); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (count seven); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d (count eight); third-degree hindering, N.J.S.A. 2C:29-3b(1) (count nine); and fourth-degree maintenance of a gambling resort, N.J.S.A. 2C:37-4a (count ten). The jury acquitted defendant of counts two and five.
On September 21, 2007, following appropriate mergers, the trial court sentenced defendant to eight years, subject to the eighty-five percent parole disqualification provision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the charge of manslaughter, count one, followed by a five-year term, also subject to NERA, on the aggravated assault conviction. Thus, defendant received an aggregate term of thirteen years, subject to NERA. Concurrent terms of incarceration were imposed as follows: one year on the fourth-degree aggravated assault, count four; four years on the possession of a firearm for an unlawful purpose, count seven; three years on the hindering, count nine; and time already served on the maintenance of a gambling resort, count ten. Appropriate fines and penalties were also imposed. Defendant appeals and we affirm.
The following account of the incident was developed during trial. Defendant took his grandson to school on the morning of March 22, 2005, where he encountered Lavon Walls (Lavon), the wife of the homicide victim, Elliot Walls (Walls). As Lavon kissed her child goodbye, defendant jokingly asked her, "what about me?" He thought Lavon understood that he was being facetious because she laughed. Defendant had been friendly with the couple for years, acting as a witness at their wedding.
That afternoon when defendant visited Walls' store, Terrence James and Larry McLeod were there playing cards. Walls confronted defendant about his earlier comment in their presence. Defendant testified that Walls appeared angry and warned him not to say "crazy things" to his wife again. He threatened to "break [defendant's] jaw" if he did. Defendant denied having said anything disrespectful, but the encounter left him feeling uncomfortable. After about twenty minutes, defendant left the premises.
At approximately 5:20 that afternoon, another acquaintance named Andy Reed phoned defendant inquiring if he could play cards at defendant's house. Defendant, who regularly hosted card games in his basement on weekends, told Reed that he could not stop by on a weeknight. Defendant testified that Reed nonetheless called back shortly afterwards and said that he and the usual group of approximately ten players, which typically included Walls, James, and McLeod, were on their way to defendant's home. Walls had been reluctant to go to defendant's house, but James and another man convinced him to join the game.
After Reed's second call, defendant retrieved a gun from his bedroom dresser. He claimed on direct that he took the gun out because he had been robbed in the past. On cross-examination he admitted that he had never been robbed during a card game. The gun, given to defendant by his sister some twenty-eight years earlier, was kept loaded at all times.
The card game lasted approximately two hours. Although defendant did not play, he kept ten percent of the winnings as the host. The mood and atmosphere appeared normal; there were no arguments or fights. One of the players, John Simpson, brought up defendant's comment to Walls' wife, and said that when defendant encountered Lavon at the school, defendant had asked her for a kiss. Walls nodded his head, indicating that the story was true, but he did not appear to be angry.
Once the game ended, Reed heard defendant ask Walls to repay a $20 debt. Walls responded that he did not have any money. Defendant "said something to the effect [of], well you be here when I come back" and went upstairs. After Reed used the facilities located in the basement, he and James walked outside together to join the group, and when they turned the corner of the house, Reed saw defendant and Walls "locked up with each other" in the front yard while another man was trying to separate them. Defendant, according to Reed, had a metal object in his hand. Reed heard Walls say, "oh, you wanna play with knives" and saw Walls pull a razor out of his pocket.
Reed and James helped separate the combatants. Reed tried to calm Walls down while defendant walked away to the side of the house. Walls was still angry when suddenly defendant reappeared from the corner of the house holding a gun. Walls said: "[N]ow what you gonna do with that? Don't be crazy." Reed saw defendant raise the gun and fire it. Walls, holding the razor, ran towards defendant and began to cut him. Defendant fired again; this time, Reed ran for cover behind a tree. He heard defendant fire three or four more shots. He turned and saw Walls stumble, then fall to the ground.
McLeod, who had been nearby, was injured by a stray bullet. As he lay in the street, he cried out that he had been shot. Reed heard him, went and stood next to him, so he would not be struck by a passing motorist. Coincidentally, a police car drove by, which Reed flagged down.
All the other eyewitnesses reiterated that after the men were separated, defendant walked away but then returned, gun in hand, and fired. McLeod fell first, Walls attacked defendant with a knife, and defendant shot at Walls again. McLeod testified that before defendant walked away, Walls grabbed defendant's shoulder and in a normal tone of voice said, "I should have gave you a buck fifty," meaning that Walls should have struck defendant to the extent the injuries would require 150 stitches.
Walls died on the scene moments after being shot. The autopsy revealed the presence of six bullets in his body, two in the neck, three in the arm, and one in the abdominal cavity. One of the shots that entered the neck was fired from a distance between two and six inches.
The first officer at the scene was Thomas Greeley of the Englewood Police Department. He testified that he saw McLeod lying wounded in the street at approximately 8:49 p.m. and immediately called for backup and an ambulance. He next observed a man lying on the ground with his head down and his arm up against a side yard fence. When Greeley asked McLeod who shot him, he responded by saying that he had been shot in the groin. Greeley entered defendant's house after seeing blood on the concrete steps leading to the door. Defendant's wife was hysterical, as were the children in the home. Defendant was bleeding from a couple of deep lacerations around his left eye; defendant told Greeley that Walls had stabbed him.
Nathaniel Kinlaw, another officer at the scene, saw a knife in the open position lying on the ground nearby Walls' body. Inside the house, he saw defendant holding a towel, completely soaked red with blood, to the wounds on his face. Kinlaw, not knowing what had transpired, asked defendant if he could pat him down for weapons. Defendant agreed. Defendant told Kinlaw that he had also been cut on the side.
Kinlaw rode in the ambulance with defendant, who was not handcuffed. Defendant explained that he and Walls had an argument after Walls accused him of being disrespectful to his wife. When defendant denied having done so, Walls became angry and drew a knife, slashing at defendant. Defendant said nothing to Kinlaw about shooting a gun.
Ana Bedoya, another officer at the scene, also asked McLeod who shot him, and he responded that he did not know. After feeling Walls' body for a pulse, Bedoya walked towards the house, following a trail of blood leading to the rear yard and the back of the shed behind the house. There, she discovered a handgun lying on the ground.
At the hospital, McLeod had a bullet removed that had pierced his left thigh and lodged in his penis. McLeod was released from the hospital the following morning.
The trauma surgeon who treated both defendant and McLeod, Kathleen O'Hara, testified that defendant had numerous knife wounds to his face, had lost part of his lower left eyelid, and suffered a less serious cut to the chest. When he arrived at the hospital he was alert and talking, and his vital signs remained stable. After a plastic surgeon had stitched his wounds, Detective John Straniero of the Bergen County Prosecutor's Office asked if defendant would consent to an interview. As a precautionary measure, Straniero read him each of the Miranda*fn2 rights from a card. To the officer, defendant seemed alert and oriented, and appeared to understand his rights. He did not refuse to be questioned or invoke his rights.
Defendant told Straniero that he and Walls had argued during a card game, gone outside and had a "pushing match" when Walls stabbed him. Defendant denied having a gun or shooting anyone, and claimed that he did not own a gun. Defendant insisted that although he heard a shot, he did not know who fired it. Straniero's questioning lasted approximately fifteen to twenty minutes.
Defendant spent the night at the hospital, and according to hospital records, appeared to sleep throughout the night. He was discharged at approximately 8:45 a.m. to the custody of police and was prescribed Percocet for pain. He wore a hospital gown because the police had taken his clothes as evidence. Defendant was driven to the Bergen County Prosecutor's Office and placed in an interview room, where he met with Detectives Mark Bendul and Peter Schwartz of the Bergen County Prosecutor's Office. He was not handcuffed or otherwise restrained. He did not appear to be in pain or confused. Although he frequently dabbed a gauze pad at clear liquid oozing from his injured eye, which he said was uncomfortable, he told the officers that his mind was sufficiently clear for him to be interviewed. He was instructed to let the officers know if he needed anything. At 9:20 a.m., Bendul placed a Miranda form in front of defendant and read each right to him. Defendant wrote "yes" next to each right, signifying that he understood, and agreed to speak to officers in the absence of counsel. Bendul said defendant had no problems either writing or speaking.
Defendant was emotional and began to cry as the officers questioned him. He provided his first version of the events of the prior evening - that the card game ended at about 8:30 p.m., that James, Walls, Simpson, and Reed were the last to leave, and that they congregated in defendant's front yard. When defendant walked outside and told them to leave, Walls said, "I'm ...