On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-06-00472.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Nugent.
Defendant Lucius Wilkerson was tried before a jury and convicted of second degree aggravated assault, N.J.S.A. 12-1(b)(1), as a lesser-included offense of first degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, and third degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39- 4(d). After merging the two convictions, the court sentenced defendant to a term of ten years, with an eighty-five percent period of parole ineligibility and three years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and imposed the mandatory fines and penalties.
In this appeal, defendant raises a number of arguments critical of the trial court: (1) the manner in which the court responded to questions posed by the jury; (2) attacking certain evidential rulings; (3) alleging reversible error in the manner the court instructed the jury on the law; (4) claiming the State failed to disclose exculpatory evidence; (5) suggesting the cumulative effect of these errors requires the reversal of his conviction; and, in the event these arguments do not prevail,
(6) asking us to vacate the sentence imposed by the court as excessive, requiring the case to be remanded for re-sentencing.
We affirm defendant's conviction but remand the matter for re-sentencing. We derive the following facts from the record developed before the trial court.
From 1997 to May 2008, defendant's stepdaughter Fanny Benjamin and her four children rented a single family house in Franklin Township, Somerset County, owned by defendant.
Benjamin had known defendant for thirty-seven years and considered him a father to her and a grandfather to her children. At the time of the incident that gave rise to this criminal case, Benjamin had been romantically involved with Reginald Walker for ten years, and he had fathered two of Benjamin's children, including a five-year-old boy.
By the end of May 2008, Benjamin had moved most of her personal items out of defendant's house and into her new residence in South Bound Brook. The only items remaining were a telephone and a disabled car parked in the driveway. The car was a source of tension between Benjamin and defendant, who had asked her twice to move it.
On Saturday, May 31, 2008, Benjamin's sister called her and told her to go to defendant's house and remove the car. Defendant was at the house when Benjamin arrived. According to Benjamin, defendant appeared "calm." They both soon left to find the man Benjamin claimed had agreed to take the car. Unfortunately, they were unable to locate this man.
Defendant told Benjamin to stay at the house while he went to get his son Rodney Wilkerson to help move the car. Benjamin testified that when defendant and Rodney returned, defendant started "raising his voice" and "cursing" at her. He told her "that he wanted [her] to move the damn car out of his yard now, just move the shit." According to Rodney, however, defendant's demeanor was "very, very calm." Rodney and defendant were able to push the car onto the neighbor's driveway without further incident. Rodney testified that when he left, the disagreement between Benjamin and defendant appeared settled.
Benjamin testified that Walker arrived a short time later with their five-year-old son whom defendant regarded as his grandson. Walker stopped his truck directly behind Benjamin's car that was parked in the driveway of the house. Benjamin stated that, by this point, defendant was standing in the street yelling at her. Walker got out of the truck, asked defendant why he was yelling, and told him not to talk to Benjamin in that manner. According to Benjamin, defendant "said okay[,] and he walked to [defendant's] car." Before defendant reached his car, however, defendant turned around, pulled out a small red-handled pocket knife, and headed towards Walker. Defendant pushed Benjamin out of the way when she tried to stop him. At this point, the five-year-old boy got out of Walker's truck, causing Benjamin to rush over to stop him from running into the street.
Walker then said to defendant: "[O]h, you want to cut me now," and put up his fists. The two men then swung at each other. Benjamin testified that "[defendant was] swinging with a knife, [and Walker was] swinging with punches." Walker was thirty-six years old, six-feet one-inch tall, and weighed 350 pounds; he was an elementary school teacher and a high school football coach. Defendant was sixty-one years old, five-feet eleven-inches tall, and weighed 217 pounds.
Defendant stabbed Walker in the right arm, but Walker kept "throwing punches." It was raining and both men fell onto the street. Defendant then stabbed Walker in the stomach and in the chest. When they both got up, Walker kept punching defendant until defendant fell again. Defendant rose, went to his car, and got a bat from the trunk. At this point, Benjamin saw Walker was bleeding and told him he needed to go to a hospital.
Walker drove himself and his son to St. Peter's Hospital, approximately six minutes away. Walker had been stabbed in his right shoulder, in the lower left side of his abdomen (which did not penetrate the abdomen itself), and in his upper abdomen just below his rib cage. This third wound pierced the right ventricle of his heart; it was deemed life-threatening and required surgery to repair. He also had smaller abrasions on his left arm. Despite his surgery, the injuries caused "anoxic brain damage" due to deprivation of oxygen. Walker is totally and permanently dependent on external medical devices for all of his bodily functions and responds only to pain.
Franklin Township Police Lieutenant Maurice Guglielmo responded to the scene of the altercation after Walker left to go to the hospital. Guglielmo saw defendant had a swollen and bruised lip, and his clothes were mussed and blood-stained. The injury to the lip required several stitches. Defendant told Guglielmo that Walker had punched him during an argument about rent. When Guglielmo advised defendant that Walker had been hospitalized, he responded: "I know I retaliated with a knife." Guglielmo removed "a small pocket knife" from defendant's person before taking him into custody. Defendant was calm and cooperative.
After informing defendant of his constitutional rights under Miranda*fn1 and obtaining a signed waiver of those rights, the police interrogated defendant about the incident. The interrogation was videotaped and transcribed; the court admitted both items into evidence at trial, and the videotaped statement was played to the jury. After describing the preliminary events that occurred between himself and Benjamin, defendant responded to questions concerning his altercation with Walker. Defendant gave the following account of what occurred:
POLICE INTERROGATOR: All right, you snapped.
DEFENDANT: I snapped I guess, that's all I know.
POLICE INTERROGATOR: He (Walker) was walking up on you; you're on your property, what happens then?
DEFENDANT: We went at it.
POLICE INTERROGATOR: You start swinging at each other?
POLICE INTERROGATOR: Or you grab a hold of each other; I wasn't there so you've got to tell me what happened.
DEFENDANT: I'll tell, I'll tell you the truth because you know, he's a big guy, I'm a big guy like I said I started walking away again and I snapped and then I reached in my pocket and I had a little work knife in my pocket a little knife like that.
POLICE INTERROGATOR: Like a Swiss army knife kind of thing?
DEFENDANT: Uh yeah, yes. I just grabbed it took it out and told him I wasn't playing and he put his dukes up like you know like Mohammad Ali or something and I wasn't playin[g] (inaudible) that's all I know. POLICE INTERROGATOR: All right. DEFENDANT: He was swinging at me and I was swinging at him, he hit me and I . . .
think the cops said he was in the hospital so I must have hit him.
POLICE INTERROGATOR: Okay, do you know how many times you hit him?
DEFENDANT: No I don't know I honestly don't.
POLICE INTERROGATOR: More than once? DEFENDANT: ...