On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-10-1101.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Messano and LeWinn.
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). His co-defendant, Anthony Pearyer, who is also defendant's brother, was charged in the same indictment with first-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). Defendant and his brother were tried together to a jury in March 2007. The jury convicted defendant of the lesser-included offense of reckless manslaughter and the two weapons charges. On July 20, 2007, defendant was sentenced to an aggregate term of six years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
The pertinent trial evidence may be summarized as follows. Bad blood existed between defendant and Dashaun Goines, the victim of the homicide in question. Defendant's former girlfriend, Kyra Johnson, was dating Goines and, according to her testimony, defendant and Goines did not get along.
On the night of March 5, 2005, defendant, his brother and several other individuals arrived at the Chez Maree nightclub in Plainfield. As this group attempted to enter the club, another entourage of men approached the entrance. Goines and his friend, Al-Rahman Stembridge, were among the group.
Shawn Adams, the bouncer at the nightclub, testified that he heard someone in Goines' group say "something" to defendant's group "and they just started fighting." Adams testified that defendant threw the first punch; however, Stembridge testified that "[s]omebody threw a punch over [defendant]."
A fracas broke out between the two groups. Adams testified that one fight involved defendant and his brother and Goines, adding that defendant and his brother were "just punching [Goines] all over the place, punching him and kicking him."
Kurt Donnell, a security officer on duty at the nightclub that night, observed the fight and testified that Goines "was the one getting beat up." He could not recall how many people were attacking Goines. Donnell interceded in the fight, assisted Goines to his feet and stated that initially he seemed alright. At that point, however, both Donnell and Adams observed blood on the back of Goines' shirt in the same area where Donnell had seen Goines being punched.
Goines refused medical attention. He shortly thereafter collapsed and later died in the hospital. No witness saw anyone stab Goines; nor did any witness describe any individual wielding a knife or any similar object. Defendant was observed running away after Donnell intervened and brought Goines to his feet.
The medical examiner testified that the cause of Goines' death was "[a] stab wound of his torso." She also observed a stab wound on Goines' right arm, "just below the elbow" as well as a "laceration, . . . an abrasion, and contusion on the top area of his head[,]" in addition to "two lacerations of his lower lip and a laceration on the inner aspect of his lower hip." According to the medical examiner, the wound to Goines' torso was consistent with a knife wound.
Following the arrest of defendant and his brother, forensic tests were conducted which concluded that blood found on co-defendant's jeans was that of Goines.
Defendant did not testify at trial; however, he presented four character witnesses who attested to his reputation as a law-abiding citizen in the community. Through defendant's attorney, the jury was informed that his defense was that he was not involved in the fight that led to Goines' death. Defense counsel told the jury in summation:
His Honor when he reads you the instructions, there's certain things if, as a matter of law, if there is a factual basis in the record, his Honor is constrained, even if it appears to be inconsistent with the defense, to give the legal instruction.
One such thing in this case is self-defense. I'm not arguing that [defendant] acted in self-defense. My position is [defendant] was not involved and did not do it . . . but because Al-Rahman Stembridge testified that Mr. Goines punched [defendant], his Honor is constrained as a matter of law for some other considerations which he'll explain to instruct you with respect to self-defense. So that you can discount whether or not if anything happened in this case and you can attribute it to him, that self-defense negates that . . . .
So [the judge] must give you full and complete jury instruction[s] and many of those jury instructions may seem to you to be inconsistent with that which [defense counsel] proposed as his defense, which is we didn't do it. . . . [I]t is our position [defendant] never had a knife, didn't stab anybody and nobody said he did.
The prosecutor, in summation, made numerous remarks that prompted objections by defense counsel. Regarding co-defendant, the prosecutor stated to the jury: "here are . . . reasons that you know that Anthony Pearyer was in that fight that night: was there any explanation whatsoever as to how the victim's DNA ended up on these jeans? No, none." The judge sustained counsel's objection and told the jury: "There's no requirement for a defendant to say anything at all or, obviously, to testify. So the reference that there's no explanation is improper. Therefore, it must be struck from the record and you must disregard same."
The prosecutor then stated, "there's nobody, nobody that says that anybody else came up there and stuck a knife in [Goines'] back." The trial judge overruled defendant's objection to this statement.
The prosecutor told the jury, "[y]ou heard [defense counsel] talk to you about self-defense[,]" whereupon defense counsel objected, noting that he "didn't ...