On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-01-0164.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Fasciale.
In appealing her conviction for, among other things, first-degree murder, defendant argues the trial judge: erroneously failed to instruct the jury of the lesser-included offense of aggravated manslaughter; mistakenly admitted character and other-crimes evidence; and imposed an excessive sentence. We reject these arguments and affirm.
The evidence adduced at trial revealed that in the early morning hours of September 22, 2007, in Atlantic City, defendant and her friend, Ashley Biscardi, argued about whether Biscardi had been unfaithful to her. After Biscardi left their hotel room, defendant became agitated over her absence and also left the hotel in search of her. Once outside, defendant encountered a group of men, who heckled defendant about her sexual orientation and her relationship with Biscardi. Defendant found Biscardi and physically attacked her, pulling her hair and shoving her before Biscardi was pulled away by another friend.
Defendant returned to and confronted the group of men, who continued to taunt defendant as onlookers laughed. Enraged, defendant made a telephone call, and when a vehicle arrived, defendant retrieved a gun from one of its occupants. By that time, some of the members of the group that had taunted defendant had left to another area, leaving Charles Williams, Ernest Marable and a few others behind. Defendant, along with a group of males, chased Williams, Marable, and others down the street, firing a handgun in their direction. Marable was hit in the arm by a shot fired from a .45 caliber weapon but was able to run off and find refuge in a nearby apartment. Williams was not so fortunate. He was hit by multiple gunshots from a .40 caliber weapon. One shot hit the back of Williams's left leg. At least two and possibly a third gunshot went through Williams's head and upper torso. The Atlantic County Medical Examiner testified without contradiction that Williams died almost immediately from a gunshot to the head. Neither weapon fired that evening was ever recovered.
Defendant was charged with: first-degree murder, N.J.S.A. 2C:11-3a(1) and -3a(2); second-degree conspiracy to possess a weapon for an unlawful purpose, N.J.S.A. 2C:5-2; third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Co-defendant Carlos Woodall was charged with the same offenses, with the exception of murder, and was also charged with third-degree hindering apprehension, N.J.S.A. 2C:29-3a(3). At the conclusion of a seven-day trial, Carlos Woodall was acquitted of all charges. Defendant was convicted of all the charged offenses except conspiracy.
At sentencing, the judge merged all other convictions into the murder conviction and imposed a seventy-year prison term subject to an 85% period of parole ineligibility. Defendant appealed, presenting the following arguments for our consideration:
I. THE JUDGE IMPROPERLY DENIED THE JOINT REQUEST BY THE DEFENSE AND THE STATE TO CHARGE AGGRAVATED MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE OF MURDER; THE EVIDENCE PRESENTED SO MANY CONFLICTING VERSIONS OF THE FACTS THAT THE JURY HAD A RATIONAL BASIS FOR QUESTIONING THE FACTS OF THE SHOOTING AND WHETHER THE DEFENDANT POSSESSED THE MENS REA FOR MURDER OR MERELY AGGRAVATED MANSLAUGHTER.
II. THE STATE'S REPEATED ATTEMPTS, THROUGH LAW-ENFORCEMENT TESTIMONY AND THE PROSECUTOR'S SUMMATION, TO PAINT A PICTURE OF THE COMMUNITY WHERE THE CRIME TOOK PLACE AS ONE WHERE WITNESSES ROUTINELY FEAR FOR THEIR SAFETY IF THEY TESTIFY OR OTHERWISE PROVIDE EVIDENCE TO POLICE, WAS: (1) AN IMPROPER USE OF CHARACTER EVIDENCE TO PROVE SPECIFIC CONDUCT IN VIOLATION OF N.J.R.E. 404(a); (2) AN ATTEMPT TO BESMIRCH DEFENDANT'S CHARACTER IN VIOLATION OF THAT RULE AND N.J.R.E. 404(b); AND (3) WHOLLY IMPROPER WITHOUT A LIMITING INSTRUCTION TO RESTRICT THE JURY'S USE OF THAT EVIDENCE (Not Raised Below).
III. THE MATTER SHOULD BE REMANDED FOR RE-SENTENCING.
We find insufficient merit in the arguments contained in Points II and III to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject Point I for the following reasons.
In considering the arguments contained in defendant's Point I -- that the judge erred in refusing to instruct or permit the jury to consider whether defendant committed aggravated manslaughter -- we start with N.J.S.A. 2C:1-8(e), which directs that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." This statute requires consideration of (1) whether "the requested charge satisf[ies] the definition of an included offense set forth in N.J.S.A. 2C:1-8(d)," and (2) whether there is a "rational basis in the evidence to support a charge on that included offense." State v. Cassady, 198 N.J. 165, 178 (2009); see also State v. Thomas, 187 N.J. 119, 130-31 (2006). The first aspect of this test was certainly satisfied here, as we have recognized there is "no dispute that aggravated manslaughter and manslaughter are true lesser-included offenses to murder." State v. ...