NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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,
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:
We find insufficient merit in the arguments contained in Points II and III to warrant discussion in a written opinion.
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
Certainly, the State is correct that the evidence supported an instruction that defendant's "conscious object [was] to cause serious bodily injury that then resulted in the victim's death" and permitted a determination that defendant committed first-degree purposeful or knowing murder.
To be sure, the jury heard multiple versions of the shootings that do not perfectly coincide with each other. We reject, however, the contention that the jury could have rationally found defendant acted with an intent less than that required by purposeful or knowing murder.
In support of her argument, defendant alludes to the testimony of three witnesses: Joseph Blake, Denise Grant, and Ernest Marable. As for Blake, defendant refers to that part of a statement he gave police after the shooting, in which he related that "motherfuckers came around the corner shooting and [Williams] just took off running." In context, however, it is clear that Blake was relating only an earlier portion of the entire episode and that he did not see the events that unfolded when later shots were fired; instead, as he mentioned in his statement to police, after he saw defendant and Williams running, Blake went into his home and closed the door, and only later when police arrived did he see Williams's body "laying in the dirt."
Similarly, Denise Grant gave an account of being in her apartment watching television. She looked out of her apartment as the commotion began and saw defendant running down the street firing a weapon. She gave no testimony as to the remainder of the episode that resulted in Williams's death.
And, lastly, defendant relies on the testimony of Marable, who described being chased along with Williams by defendant, who was firing a weapon in their direction. Marable explained how defendant and others came walking toward the group he was in. He was then asked how close defendant got from him and Williams, and he responded:
Marable then described how he ran to a nearby apartment and after knocking, burst through an apartment door and was assisted by the occupant. He gave no testimony regarding what thereafter happened with defendant or Williams.
The testimony of these three witnesses, Blake, Grant and Marable, upon which defendant relies, does not provide a rational basis for a finding that defendant fatally shot Williams while running after him and not at point-blank range as testified to by others. These witnesses saw only part of the entire episode — the very beginning — when defendant chased the group that heckled her. By the time the final shots were fired, these three witnesses were indoors and out of sight. This is, thus, not a situation where individuals observing the same incident saw different things, thereby suggesting multiple theories of criminality. These three witnesses did not profess to see the entire episode. Those that witnessed the final shots or had a view of the field when they were fired consistently testified — albeit with minor discrepancies — that defendant shot defendant at close range, undoubtedly with the intent to kill.