On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-08-2556.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Waugh.
Defendant Wallace Gaskins appeals his conviction for the lesser included offense of first-degree aggravated manslaughter (count one),*fn1 contrary to N.J.S.A. 2C:11-4; first-degree attempted murder (count two), contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree unlawful possession of a weapon (count three), contrary to N.J.S.A. 2C:39-5(b); and second-degree unlawful possession of a weapon for an unlawful purpose (count four), contrary to N.J.S.A. 2C:39-4(a), as well as the resulting sentence. He also appeals the sentence imposed by the trial judge for an unrelated offense, charged in the same indictment, that was severed and never tried. We affirm the conviction, vacate the sentence for the count that was not tried, and remand for resentencing on counts one and two.
We discern the following facts and procedural history from the record on appeal.
During the evening of March 8, 2008, Mark Harper, Antoine Walker, and Anthony Stover attended a birthday celebration for their friend Antwan Johnson in Irvington. At the time, Johnson, Walker, and Stover were members of the Grape Street Crips, but Harper was not. As Harper, Walker, and Stover left the party and walked to their car, they came under gunfire. According to Harper, he heard a scream, turned around, saw two men running at them, and then heard and saw gunshots. Stover was shot and died at the scene.
Harper ran to the car and got inside, but was unable to get the key in the ignition. He saw an individual, whom he subsequently identified as Gaskins, standing a few feet away from the car window with a gun in his hand. The gun jammed while Gaskins was pointing it at Harper. While Gaskins attempted to un-jam the gun, Harper started the car and "mash[ed] on the gas pedal," at which time he was shot in the wrist. Harper drove to the home of his girlfriend, who drove him to the hospital.
Following their initial investigation, the police arrested Gaskins on
March 12. He provided them with an audio-recorded statement, which was
played at trial. Gaskins told police that he was in a bar in Irvington
on the night of the shooting when someone known as "Jimmy"*fn2
called him and told him he had a problem and needed a gun.
Gaskins then met up with Jimmy and Alexander Owens.
Jimmy and Owens told Gaskins that they had been in an altercation with members of the Crips and Jimmy needed a gun. Although Gaskins told them he did not want to be involved because "it didn't have nothing to do with [his] set," he gave Jimmy a .45 caliber handgun. Owens already had a 9mm handgun.
In addition to providing the gun, Gaskins drove the men to an alleyway near the house "the [Crips] dudes" were visiting. According to Gaskins, Jimmy and Owens walked to the alleyway, while Gaskins waited in the car. Jimmy called him and told him to move the car to another street, which Gaskins did. He then "waited for them, turned the car off, waited for them, heard gunshots." He said it sounded as if "the whole clip" of the 9mm gun, and four or five shots from his .45 caliber gun, were fired. According to Gaskins, Jimmy and Owens then ran to the car. Jimmy told Gaskins that the .45 caliber gun was jammed. Gaskins "unjammed the gun, took the shell out, and gave him the gun back." He then drove them home.
Gaskins told the police that he met with Jimmy and Owens the following night. They told him that they had run after the victims, and that one of "these dudes was in the car." Owens shot the one outside of the car with his 9mm gun, while Jimmy shot the individual in the car through the car window with the .45 caliber gun. Jimmy told Gaskins that he had sold both guns that morning.
The police recovered four shell casings from the scene of the shooting. They determined that at least two weapons were used in the shooting: a 9mm and a .45 caliber gun. The bullet removed from Stover's head was determined to have come from a 9mm gun; the wound in Harper's hand was determined to have been caused by a .45 caliber gun.
Gaskins was indicted in August 2008, along with Owens and Shamir Brown.*fn3 In addition to the original murder charge and the four other offenses for which he was convicted, the indictment charged Gaskins with a weapons offense that was alleged to have occurred on March 12, four days after the other offenses. That count charged Gaskins with second-degree possession of a .40 caliber handgun, contrary to N.J.S.A. 2C:39-5(b). The trial judge subsequently granted Gaskins' motion to sever that count so it could be tried separately. In fact, it was never tried.
On September 15, 2009, Owens pled guilty to second-degree manslaughter, contrary to N.J.S.A. 2C:11-4(b). Gaskins sought to introduce portions of the factual basis given by Owens at the time of his guilty plea, but the trial judge excluded most of it. Gaskins opted not to introduce the portion that the judge held to be admissible.
Gaskins was tried before a jury over thirteen days during October, November, and December 2009. On December 2, the jury found Gaskins guilty of the lesser included offense of aggravated manslaughter under count one, and guilty on counts two through four.
Gaskins was sentenced on March 1, 2010. The judge merged count four into count two and sentenced Gaskins to an extended term of life, subject to an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-6(c). He imposed five years of supervision upon release. On count one, the judge imposed a consecutive sentence of thirty years, with an eighty-five-percent period of parole ineligibility, which included the fifteen years required by the Graves Act, also with five years of supervision upon release. The judge imposed a concurrent sentence of ten years, with a five-year-period of parole ineligibility pursuant to the Graves Act, on count three. Finally, despite the fact that Gaskins was never tried on the severed count,*fn4 the judge imposed a concurrent ten-year sentence with a five-year period of parole ineligibility under the Graves Act for that count. This appeal followed.
Gaskins raises the following issues on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO ADMIT CO-DEFENDANT ALEXANDER OWENS' STATEMENT INVOLVING HIS FACTUAL BASIS IN SUPPORT OF HIS GUILTY PLEA TO RECKLESS MANSLAUGHTER AS AN ADMISSION AGAINST INTEREST PURSUANT TO N.J.R.E. 803(C)(25)
POINT II: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE
A. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM ON COUNT II ON THE BASIS THE DEFENDANT WAS A PERSISTENT OFFENDER
B. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM POSSIBLE 30 YEAR BASE TERM ON COUNT I
C. THE TRIAL COURT ABUSED ITS DISCRETION BY REQUIRING THE TERMS IMPOSED ON COUNTS I AND II BE CONSECUTIVE RATHER THAN CONCURRENT IN NATURE POINT III: THE DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON WITHOUT A PERMIT ARISING OUT OF COUNT VIII MUST BE REVERSED AND THE RESULTING SENTENCE IMPOSED THEREON VACATED IN THE ABSENCE OF DOCUMENTATION DEMONSTRATING THE DEFENDANT WAS EITHER FOUND GUILTY OR PLED GUILTY TO THIS CHARGE
We start our consideration of this appeal with Gaskins' final point. The trial judge mistakenly imposed a sentence on the severed weapon count, which had not been tried. As the State has conceded, that portion of the sentence must be vacated.
Gaskins argues that the trial judge erred in refusing to admit the entirety of the factual basis Owens gave to support his guilty plea. He argues that the portions of the statement barred by the judge would have exonerated him.
At trial, the State presented two theories of criminal liability with respect to Gaskins. First, it argued that he was identified by Harper as the person who shot him. Second, it argued that, because Gaskins had admitted in his statement that he supplied one of the weapons used in the shooting and that he drove the others to and from the site of the shooting, he was an accomplice. N.J.S.A. 2C:2-6. During summation, the prosecutor conceded that Gaskins did not shoot Stover, but maintained that he had shot Harper.
Prior to the start of the trial, Gaskins sought to admit the factual basis for Owens' guilty plea, arguing that it inculpated Owens with respect to the killing of Stover and exculpated Gaskins with respect ...