On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-07-1043.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 27, 2010
Before Judges Cuff, C.L. Miniman and Waugh.
Defendant Rashan Capers appeals from a judgment convicting him of first-degree murder, contrary to N.J.S.A. 2C:11-3a; first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 and 2C:11-3; two counts of third-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5d. Defendant also appeals from the sentence imposed on June 15, 2007, of forty years in prison on the murder conviction, eighty-five percent to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and a consecutive twelve-year term on the attempted-murder conviction, also subject to an eighty-five percent NERA parole disqualifier. The remaining convictions were merged into the murder and attempted-murder convictions for sentencing purposes. We now affirm.
Around 2:00 a.m. on Saturday, March 25, 2005, Raheem Pickens, age 17, and his friend Dayshawn Smith, age 20, purchased a bottle of rum at a liquor store in Paterson. Pickens had been drinking heavily, and he planned to share the bottle with Smith. Pickens and Smith were on their way to Pickens's house on Broadway when a Lexus pulled into a parking spot in front of a Kentucky Fried Chicken and broke the bottle of rum. The driver of the car was Shamar Ward, the boyfriend of Pickens's sister, and the other occupants were Kezmar Washington, defendant, and defendant's cousin, Quashon Capers.
Either Pickens or Smith demanded that the men in the car pay for the broken bottle. Pickens, who is almost six feet tall, admitted that he was drunk and aggressive and that he and defendant "got into it." Defendant, who is about five feet, six inches tall, landed a single punch that knocked Pickens to the ground, leaving him with a light cut on his lip. Pickens wanted to pursue defendant, but Smith restrained him. By then, Ward and Washington, who had gone into Kentucky Fried Chicken, returned. Pickens testified that, as the four men got back into the car, he warned defendant that "when I catch him I'm going to get him . . . ."
Around midnight Saturday night, Pickens, Smith, and the occupants of the Lexus found themselves at the same party. Pickens was still angry about the broken bottle, and he started an argument with defendant about it. The argument, which became "heated," involved four or five of Pickens's friends and was directed at defendant and his cousin.
Pickens testified that when he confronted defendant at the party, defendant tried to assure him that "everything was squashed," which Pickens understood to mean that any issues between them were settled. But Pickens, who was still drinking, testified that despite defendant's attempt at peacemaking, he "had plans" and "wanted to fight [defendant]."
Washington believed Pickens was looking for "payback," and he ushered defendant and his cousin out of the party. Defendant was upset and asked Washington to take him home, but Washington persuaded him not to end the evening, and they went to another spot. Later, Ward drove Washington and the Capers cousins to an after-hours club.
Sometime after 3:00 a.m. Sunday, Pickens and Smith went to the same after-hours club in Paterson. They did not enter the club, which charged a fee, and instead hung out, with dozens of others, on the street in front of the club. Pickens testified that he was drunk and wanted to fight.
Pickens's older sister, Kanasha Moore, and her friend were on their way home from a late-night party when they drove past the after-hours club. Moore saw Pickens in the crowd in front of the club with, among others, Smith, Ward, and Washington, along with defendant and his cousin Quashon. Pickens "seemed more hyper than usual," "as if he was about to fight." He and Quashon were cursing at each other and seemed eager to fight. Moore noted that Pickens "was actually . . . the rowdier one." Although Quashon was "a smaller guy" and "[n]othing for [Pickens] to be afraid of," Moore decided to stop and talk to Pickens.
Moore testified Pickens was arguing about an incident concerning a broken bottle that had occurred twenty-four hours earlier. She said Pickens "wanted to fight somebody. Like, basically, [he was] just calling somebody out to fight[.]" And "people running off at their mouth . . . provoked him to get even angrier . . . ." Moore tried, without success, to get Pickens to leave with her.
Over time, the argument expanded and escalated. Pickens and defendant began "argu[ing] . . . over [Ward] and who he was going to hang with." Smith joined Pickens in his argument with defendant. Defendant "was upset" about Ward and took a swing at Pickens. Defendant missed Pickens, after which Smith "followed up and punched [defendant]." Then, Pickens "hit [defendant] again, and he fell." At that point, Moore again pressed Pickens and Smith to leave with her. Washington and defendant's cousin helped defendant to his feet, and the three left the scene.
According to Pickens, after he knocked defendant down, he and Smith were heading, at Moore's urging, towards her car when they noticed that defendant was returning, "coming around the corner." Moore got back in her car; Pickens and Smith remained on the street and Pickens "was telling people . . . [that he] just beat this nigger up."
Moore said that when defendant returned after the first fight, defendant held his hands in front of him. Moore and her friend, who had remained in the car when Moore stopped in front of the club, thought they saw something in defendant's hand that caused a "shiny glare."
Defendant was walking quickly, but not running. Pickens aimed the first blow at defendant, and then both men were swinging at each other. At some point Pickens retreated, holding his shoulder because defendant had stabbed him in the upper arm. Smith then stepped in and swung at defendant. Defendant stabbed Smith and then "stabbed [Pickens] again in almost the same spot." Pickens did not realize he had been ...