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State v. Hockenberry

July 13, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RICHARD HOCKENBERRY, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 98-12-4326.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 6, 2010

Before Judges C.L. Miniman and Waugh.

Defendant Richard Hockenberry appeals from a September 7, 2007, order denying post-conviction relief (PCR) in connection with his conviction of first-degree murder, contrary to N.J.S.A. 2C:11-3a(1) and -3a(2); second-degree possession of a weapon for unlawful purposes, contrary to N.J.S.A. 2C:39-4a; and third- degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b. At sentencing on June 30, 2000, the second-degree weapons offense was merged into the murder conviction, and a term of life imprisonment subject to the parole ineligibility terms of the Graves Act*fn1 and the No Early Release Act (NERA)*fn2 was imposed. Defendant also received a concurrent term of five years on the third-degree weapons offense. For the reasons expressed hereafter, we affirm the denial of defendant's PCR petition.

The evidence at trial established the following facts:

Defendant and three friends, Michael and Dominick Jones and Tony Rutherford, all from Pennsylvania, visited Camden for an overnight stay on October 8, 1997. Rutherford, age fourteen, had an argument with defendant, age twenty-six, the week before coming to Camden, and defendant was heard to say he was "going to get" Rutherford. Defendant brought a .22 caliber semi-automatic handgun and Rutherford carried a .38 caliber revolver to New Jersey.

On the night of October 8, 1997, the four friends went for a walk and turned down an alley. Michael and Dominick[] heard a gunshot, looked up and saw defendant with his gun in his hand and Rutherford on the ground. Defendant had shot Rutherford in the back of the head. Defendant handed Rutherford's .38 to Dominick and told him to shoot Rutherford or he would wind up just like Rutherford. Dominick aimed the gun at the left side of Rutherford's head and pulled the trigger. The shooting occurred at approximately 2:00 a.m., after which defendant, Dominick and Michael returned to the apartment where they were spending the night. The three concocted a story that Rutherford sold fake cocaine to a "crack geezer" who shot him.

The next morning, defendant and Dominick gave the .22 and the .38 to Michael and told him to sell them for money to get back to Pennsylvania. Michael sold the .38 and bought bus tickets to leave Camden. Michael then sold the .22 in Williamsport, Pennsylvania, to buy additional bus tickets to continue home to Altoona, Pennsylvania.

At 7:44 a.m. on October 9, 1997, an emergency medical technician (EMT) was dispatched to the alley where Rutherford's body was found. Several days later, defendant admitted to friends in Pennsylvania, including Kevin Stevens, that he shot Rutherford.

During the week between Christmas and New Years in 1997, Julie Vaughn, a friend of both defendant and Rutherford, called defendant and asked if he had killed Rutherford. Defendant told Vaughn to "shut up." Vaughn repeated the question and defendant admitted he had killed Rutherford. Vaughn then informed a detective with the Altoona Police Department. In April 1998, defendant met Vaughn at a mall in Altoona and demanded that Vaughn tell him what she told the police. When she said she had not told the police anything, defendant threatened her and left.

After the Altoona police reported Vaughn's tip to the Camden Prosecutor, Investigator Jim Koslowsky went to Altoona to interview people about the shooting. On April 30, 1998, Koslowsky interviewed defendant's girlfriend, Heather Hand. During the interview, defendant paged Hand numerous times. At the same time, defendant was calling the Altoona Police Department. When advised of defendant's calls, Koslowsky invited defendant to come in and talk. Defendant arrived at the Altoona Police Department and admitted to Koslowsky that he was in Camden on the day of the shooting, but claimed he was not present when the shooting occurred. Defendant was not taken into custody and left the police department after the interview.

On May 18, 1998, Koslowsky signed a complaint charging defendant with Rutherford's murder and traveled to Altoona to arrest him. Defendant, who was not at his home, was ultimately located at a campsite, arrested and transported to the Altoona Police Department.

At the Altoona Police Department, defendant was advised of his Miranda*fn3 rights. He initially claimed that he was not present at the shooting, but then changed his story, stating that he was six feet away from Dominick when Dominick fired the shots. When Koslowsky told defendant that this was contrary to information provided to the police, defendant admitted that he shot Rutherford with the .22 and that Dominick shot Rutherford with the .38. Defendant then gave a taped statement.

Notwithstanding the taped confession, defendant testified at trial that he was not present when Rutherford was shot and that Michael and Dominick told defendant that Rutherford was shot by a "crack geezer."

Defendant claimed he lied in his taped confession to "get it over with." [State v. Hockenberry, No. A-0234-00T4 (App. Div. ...


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