On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3695.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Reisner and Harris.
In connection with the killing of Keith King, defendant Donel Matthews was acquitted of first-degree murder, N.J.S.A. 2C:11-3a, but convicted of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1). He was also convicted of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. He was acquitted of fourth-degree aggravated assault on Marvin Harris, N.J.S.A. 2C:12-1b, and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a. The court imposed an aggregate sentence of eight years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant appeals from the conviction and the sentence, raising the following points for our consideration:
I. THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE MENTAL STATE OF "NEGLIGENTLY" WAS REVERSIBLE ERROR.
II. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE TESTIMONY THAT DEFENDANT POSSESSED A HANDGUN PRIOR TO THE SHOOTING WAS IMPROPERLY ADMITTED, AND THE TRIAL COURT'S CURATIVE INSTRUCTION FAILED TO AMELIORATE THE PREJUDICE.
III. SINCE THE DEFENSE ASSERTED AT TRIAL WAS "ACCIDENT," DR. HUA'S TESTIMONY THAT THE MANNER OF DEATH WAS A NON-ACCIDENTAL HOMICIDE CONSTITUTED AN INADMISSIBLE NET OPINION THAT THE DEFENDANT WAS GUILTY (NOT RAISED BELOW).
IV. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN ACCEPTING TRIAL COUNSEL'S STIPULATIONS THAT THE DEFENDANT POSSESSED THE HANDGUN; THAT THE DEFENDANT DID NOT HAVE A PERMIT TO OWN THE HANDGUN; AND THAT THE HANDGUN WAS OPERABLE; WITHOUT SECURING THE DEFENDANT'S CONSENT BECAUSE IT RESULTED IN AN ADMISSION OF GUILT WITH REGARD TO COUNT THREE (NOT RAISED BELOW).
V. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE OF PROSECUTORIAL OVER-ZEALOUSNESS.
VI. THE IN-COURT CONDUCT OF THE STATE'S WITNESSES, IN CONJUNCTION WITH THE COMMENTS MADE BY THE PROSECUTOR CONCERNING THEIR IN-COURT CONDUCT, PREJUDICED THE DEFENDANT'S RIGHT [TO] A FAIR TRIAL (RAISED IN PART BELOW).
VII. THE [EIGHT-]YEAR BASE TERMS IMPOSED ON THE DEFENDANT'S CONVICTIONS WERE MANIFESTLY EXCESSIVE.
Having reviewed the record, we reject these arguments and affirm the conviction and the sentence.
This was the most pertinent trial evidence. The State attempted to prove that defendant was motivated to kill King because of jealousy over the affections of Clerice Harris.*fn1
Clerice testified that she met defendant in March 2007, when she was living at her mother's house in Irvington, the city where defendant also lived. She described her relationship with defendant as "pretty close"; they saw each other "[a]lmost every day." Defendant asked her to be his girlfriend nearly every time they saw each other, although Clerice thought he was "joking at first." Defendant also told Clerice that he loved her. However, Clerice did not want to be defendant's girlfriend, and she told him that "[a]ll of the time." Nevertheless, they had a brief sexual relationship during the few months she lived in Irvington.
In May 2007, Clerice moved to Newark. Defendant continued to call her for several weeks, and would ask to come see her. According to Clerice, after a week or two, she stopped accepting defendant's phone calls, and eventually he stopped calling.
In January 2008, Clerice moved back into her mother's home. At the time, she was approximately six months pregnant; she gave birth in late April 2008. Shortly thereafter, in June 2008, Clerice began dating Keith King. Neither defendant nor King is the biological father of Clerice's baby. However, Clerice and King treated King as the baby's father and told people that the baby was his. Prior to King's death in August 2008, Clerice and King were planning to get married.
During the summer of 2008, until King's death in August, Clerice and defendant saw each other frequently. According to Clerice, defendant would "flirt" with her "a lot," and commented that she "should be with him."
According to Clerice, on the night of the shooting, she invited defendant to come over to her mother's house to visit her. While he was there, defendant stood over Clerice and said to her "you still haven't found nobody to fuck with me -- that could fuck with me." She just shook her head and did not take him seriously, because "he was drunk." Clerice testified that defendant had made similar remarks in the past, but she regarded his comments as a joke. At some point during the evening, Clerice went to the store with a friend. Before she returned to the house, the shooting had already occurred. The next day, defendant called her and said, "Reece, I'm sorry."
On cross-examination, Clerice agreed that she and defendant were friends. She never treated him like "a fool" although she laughed at his jokes. Defendant liked to brag about how tough he was, but she never took his bragging seriously. She also testified that defendant, her brother Marvin, and King all got along well. In fact, earlier on the day of the shooting, she and the three men were all "in the park laughing and joking."
Marvin also testified for the State. Like Clerice, Marvin lived at their mother's house in Irvington. He considered himself a "real close friend" of King's, and referred to King as "like a brother." According to Marvin, he saw defendant three times on August 30, 2008, the day of King's death. The first time was at approximately 5:00 p.m., when defendant passed by the house "just saying hey." The second time was at approximately 8:00 p.m. Marvin and King were outside the house when they saw defendant pass by, rolling a bicycle with one hand and holding a dog in the other. Defendant was drinking from a bottle of brandy. The three men engaged in a brief conversation, after which defendant said, "I['ll] see you all later, I am going to take my baby home." Marvin thought defendant was referring to his dog until defendant pulled out his gun. Marvin told defendant, "yeah, go put that up," meaning that defendant should take his gun home and leave it there. Marvin identified a Glock 9-millimeter handgun in evidence as defendant's gun.
The third time Marvin saw defendant was at approximately 10:00 p.m. That night, Marvin had friends over to celebrate his birthday. Clerice had invited defendant. Marvin stepped out of the house for a cigarette, at which time he saw defendant approaching. Marvin saw defendant tip up a bottle of brandy as if finishing it, and then throw the bottle onto the ground before continuing into the house.
Inside the house, during a conversation involving defendant, King, and Marvin, defendant asked Marvin, "have you ever killed anybody before[?]" At that point, Marvin took defendant outside because defendant was drunk and Marvin did not want him in the house anymore. King came outside as well. Marvin and King began talking about school and children. King was giving Marvin advice. During a lull in the conversation, defendant said, "I see you and [King] you all trying to do something with your life. Me, I'm not, I'm a fucked up individual[.]" Marvin testified that defendant then said, "I'm fucking busting you, and bust you" and pointed at Marvin and King. Marvin testified that he did not take defendant seriously, but he asked defendant why he was talking to him and King "like that." Defendant replied that he was not "talking to you or Keith," he was just repeating what he said to other people who might bother him. At that point King told Marvin not to "trip," meaning "don't worry about it."
Then, defendant said, "I don't even got to say anything I just show him this[.]" Defendant then pulled out his gun, pointed it at Marvin, and asked if he was scared. Marvin said he was and put his hands up. At this time, King was sitting at the top of the porch steps, while Marvin and defendant were standing on opposite sides at the foot of the steps; the three men formed a triangle, each about six feet apart from the others. Defendant ...