On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-07-00608.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and J. N. Harris.
In this appeal, we consider and reject, among other things, defendant's argument that his conviction should be overturned because the trial judge failed to instruct the jury properly and because the jury's verdict was against the weight of the evidence.
On July 18, 2008, a Union County Grand Jury returned a four-count indictment charging defendant Stanley R. Bullock and co-defendant Ronald Tyrone Cooper with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault with a handgun, N.J.S.A. 2C:12-1(b)(2) (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for unlawful purposes, N.J.S.A. 2C:39-4(a) (count four). The matter was tried before Judge James C. Heimlich and a jury. On November 13, 2009, the jury found defendant guilty of count one, second-degree aggravated assault, and not guilty on the remaining counts; it found co-defendant Cooper not guilty on all counts. Defendant's motion to overturn the verdict was denied, and defendant was sentenced by Judge Joseph P. Perfilio to six years in state prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal ensued.
The evidence at trial revealed that on February 27, 2008, at approximately 8:30 p.m., shots were fired on the 600 block of Harrison Place, in Linden.
William Diaz, a Harrison Place resident, testified that he was watching television with his son when he heard an argument on the street. He looked out the window and observed a man and woman arguing with a third person roughly twenty-feet behind them. As Diaz started to watch television again, he heard three gunshots, and observed two males and a female running.
Howard Lee, another resident of Harrison Place, testified that as he was arriving home, he overheard a commotion and saw three people running down the street. While he attempted to unlock his front door, he heard two gunshots and called the police to report the gunfire. Lee testified he did not recognize any of the individuals whom he saw running. Lee had been acquainted with defendant for a number of years.
Roxanne Fair, also a resident of Harrison Place, testified she heard gunshots and people running outside her residence. Fair later discovered that her Ford Explorer truck had two bullet holes, neither of which existed prior to February 27, 2008.
Detective Kevin Mikolajczyk of the Linden Police Department responded to a complaint of gunshots. On his way to the reported location, Mikolajczyk observed a "[b]lack male jogging at a slow pace" wearing a grey hat, around Bower Street, one block northeast of Harrison Place. The jogger entered 1210 Bower Street while talking on a cell phone. Mikolajczykreported his observation and established a perimeter around that Bower Street residence with backup officers.
Shortly thereafter, Carol Raymond exited the residence to ask "what was going on." Defendant followed Raymond to the door and was ordered by the police to exit the house, at which time he was secured. The officers entered the residence, and located a grey hat and cell phone on the living room table. Investigators later confirmed that the cell phone belonged to Janerette Starkey.
Starkey reported in a statement he gave to police on that date that he had been helping Diane Stevens move out of the house where she lived with defendant. Once defendant realized that Stevens was leaving, defendant "ran in the house and then came back . . . downstairs with a gun." Starkey explained that he and Stevens then left the house to drive around looking for Stevens' daughter after receiving a phone call reporting the daughter's location on Harrison Place. As Starkey and Stevens sat in the car, defendant approached and opened the driver's side door where Stevens was sitting. Starkey reported that from the passenger seat, he observed another man in the background approaching the vehicle. Once he observed the two men, Starkey got out of the car and "ran like hell." He said defendant chased after him and the other man started shooting, five or sixtimes. Starkey was uninjured.
At trial, when asked to attest to the accuracy of the statement he had given the police on the day of the incident, Starkey said he could not remember anything since he had been drinking. He only recalled waking up the following morning with blood on his hands.
Starkey's statement had been taken by Detective David Kother of the Linden Police Department. During a Gross*fn1 hearing, Kother testified that over the course of his employment as a police officer, he had dealt with individuals who were intoxicated, and Starkey was not intoxicated when he gave his statement. Starkey's statement was read into evidence, but was not physically given to the jury.
Diane Stevens also gave a statement to the police on the evening of the shooting. She retracted her statement at trial. She explained in her statement that following an earlier dispute between herself and defendant at her home, she and Starkey were in a car parked on Harrison Place trying to locate her daughter when "[a]ll of a sudden the door opened and [defendant] was screaming in the car." After opening the car door, defendant said to co-defendant Cooper "'[i]s that him?' . . . 'Shoot that nigger, get that nigger.'" The statement further indicated that Starkey and defendant started running and shooting, without specifying who was shooting.
At trial, Stevens admitted giving the police a statement (1) that she saw defendant and Cooper on Harrison Place and (2) that a shooting occurred at that location. She claimed, however, that she did not see who used the gun, and she denied any suggestion in her statement that Cooper had fired the gun. Stevens acknowledged that she had two children with the defendant and was in a romantic relationship with him for fourteen years.
Defendant testified on his own behalf. He explained that when he arrived home from work on February 27, 2008, three men were with Stevens at their home, and one of the men pointed a gun at him.*fn2 Defendant walked past the man who pointed the gun at him and approached Stevens to discuss her moving out. Defendant noticed a pickup truck in the driveway with furniture on the truck. He went upstairs and then came back, at which point the same man again directed the gun at him. Defendant and the man "had words." After the man left, the police arrived on the scene, questioned both defendant and Stevens; they asked Stevens to leave the premises without taking any more property. After she left, defendant began taking inventory of the property. He noticed a cell phone, which he believed belonged to his son, so he put the phone in his pocket.
Defendant testified that his friend, a bounty hunter, showed up at his home later that evening. The man who had previously pointed a gun at defendant subsequently arrived and the friend and the man began to "have words." As a result, the bounty hunter called the police. They came a second time and questioned defendant. Defendant then noticed the pickup truck from the earlier incident circling the block. Concerned, defendant left home and walked to Raymond's house on Bower Street. The police arrested defendant within seconds of his entering Raymond's house.
Defendant gave a statement to police after his arrest. The statement was not admitted into evidence, although portions of it were used during ...