State v. Gaines

• Decision Date: 26 May 2005
• Citation: 873 A.2d 688,377 N.J. Super. 612
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Herman L. GAINES, Defendant-Appellant.
• Court: New Jersey Superior Court

873 A.2d 688

377 N.J. Super. 612

STATE of New Jersey, Plaintiff-Respondent, v. Herman L. GAINES, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued November 16, 2004.

Decided May 26, 2005.

Robert L. Sloan argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Sloan, of counsel and on the brief).

Jeanne Screen, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney; Ms. Screen, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges SKILLMAN, COLLESTER and GRALL.

The opinion of the court was delivered by

GRALL, J.A.D.

Defendant Herman L. Gaines appeals from a final judgment of conviction and sentence, and the State cross appeals from the merger of defendant's convictions. A jury convicted defendant of aggravated manslaughter contrary to N.J.S.A. 2C:11-3a; possession of a weapon with an unlawful purpose contrary to N.J.S.A. 2C:39-4a; and possession of a handgun without a permit contrary to N.J.S.A. 2C:39-5b. The judge merged defendant's conviction for violation of N.J.S.A. 2C:39-5b with his conviction for violation of N.J.S.A. 2C:39-4a and imposed the following sentences: on aggravated manslaughter, a thirty-year term of incarceration, eighty-five percent of that term without possibility of parole, followed by a five-year term of parole supervision, N.J.S.A. 2C:43-7.2; and, on possession of a handgun with an unlawful purpose, a ten-year term, five years without possibility of parole, concurrent with the sentence on aggravated manslaughter. The judge also imposed a $1,000 VCCB assessment, a $150 SNSF assessment and a $30 LEOTEF penalty.

On August 15, 1998, fifteen year old Kevin Hill was shot and killed at a high school graduation party held in a backyard on Irvington Street in Franklin Township. By all estimates, there were well over two hundred people in attendance. The guests moved between the graduation party and a birthday party hosted in the adjoining backyard of the graduate's next-door neighbor. When Hill was shot he was standing near a chain link fence that spanned the rear border of both yards and separated them from the backyards of homes fronting on Hillside Street. There was a dense, but not continuous, border of bushes, vines and trees on the Irvington Street side of the fence.

Shameera Boston, then twelve years old, had danced with Hill and was standing in front of him, with her back to him. She heard a sound like a balloon popping and looked to the bushes at her side. She then heard a second noise and saw a flash. She saw defendant in the bushes. She knew defendant and recognized him; he was her mother's friend. Defendant's arms were up and his right arm was out in front of him, hand turned up. As he lowered his arm she heard a "heavy drop" in the bushes. She fell on top of Hill.

Nefitia Bridgeforth, Boston's cousin, was four or five feet from Hill when she heard a gunshot and saw sparks from the bushes. Like Boston, she saw defendant. She had known defendant for seven or eight years and had no doubt that it was him. He was holding a revolver. Bridgeforth could not tell whether he was pointing the gun at Hill. She got down on the ground.

As the other guests started to run from the backyard, Boston left with her sister, and Bridgeforth ran to the front yard. Stacey and Jason Gaines, defendant's uncles, stopped her and asked where defendant was. As the crowd dispersed, Bridgeforth heard shots in the street, which she described as sounding like "up in the air" shots. Neither Boston nor Bridgeforth stayed to report what they had seen. There were no reports of additional shots in the backyard or on Hillside Street.

A police officer who arrived at the scene after the shooting described what he saw and heard as "panic," cars pulling away and people running and pushing. He worked his way toward the rear of the backyard where a man was trying to administer CPR to Hill. Although the officer could not find Hill's pulse, he assisted until paramedics arrived. Efforts to revive Hill at the hospital were not successful.

The medical examiner who performed Hill's autopsy concluded that the fatal bullet was fired from a gun held higher than Hill's shoulder and passed through wood before it hit Hill. There were splinters of wood around the bullet hole on Hill's shirt, and the entry wound was above his left collar bone. The wound was oval in shape, indicating that the bullet was tumbling, not traveling straight, when it struck Hill. By the time the bullet reached Hill, it was breaking apart. The doctor found a piece of the bullet jacket on Hill's skin and several fragments of the bullet's lead and jacket inside his body along the bullet's path, which was from left to right, front to back, and up to down. Hill was six feet and one inch tall. The doctor referred to the unknown wooden object as the shooter's secondary target, explaining that a secondary target is an object through which a bullet passes en route to the shooter's primary target. When asked, the doctor agreed that a tree branch, or some other wooden object, could have been the shooter's primary target.

There was a tree in the backyard yard in which the party was held. Its branches covered a fairly large area, at least to the edge of the backyard fence.

One of the fragments of the bullet jacket the medical examiner recovered was sufficiently large to permit its identification as a .44 caliber bullet. That fragment also bore sufficient markings to identify the gun from which it was fired, but the police did not find that gun until March 2000.

On March 5, 2000, a man was arrested with a .44 caliber revolver. An officer investigating reports of gunshots stopped Otis Burrell and saw a revolver under the seat of his car. Burrell admitted he had fired into the air twice for no reason. The officer seized the handgun. A ballistics expert later identified the revolver as the gun used to fire the bullet that killed Hill.

The gun had several owners. Burrell got it from Scott, and Scott got it from Dillon. Dillon obtained the gun from Jason Gaines, defendant's uncle.

On March 15, 2000, investigators asked Bridgeforth, Dillon's girlfriend, about the graduation party, the gun and where they might find Dillon. She did not tell them that she saw the gun at the party. On March 16, 2000, she agreed to give a sworn statement about what she had seen on the night Hill was shot. It was the first time she reported that she saw defendant in the bushes with a gun. She also gave the investigators Boston's name, indicating that she too was in the area when Hill was shot. At trial, Bridgeforth testified that she fabricated the statement because of pressure from the police. Her sworn, recorded statement was admitted into evidence pursuant to N.J.R.E. 803(a)(1)(A). Despite Bridgeforth's recantation, she did not claim that the police gave her defendant's name and acknowledged that the officers did not threaten to charge Dillon with the homicide.

The jury heard extensive testimony about Bridgeforth's reasons for making her statement, her attempts to retract it prior to trial and her contacts with defendant and members of his family after she implicated him. She and Boston both testified that they had not had any contact with one another since the party.

Only one witness, Danielle Pierson, provided evidence about Hill's motive. Pierson did not attend the graduation party, but defendant later told her that he shot Hill by accident, intending to kill Dishon Page. Pierson did not report what defendant told her about shooting Hill until investigators contacted her because she had given them false information.

According to defendant, he left the party before the shooting and did not have a gun with him that night. He had heard of Dishon Page but did not know him, and he believed that Pierson made up a lie about him because he had ended their relationship. He admitted that he called Bridgeforth and told her she would be helped if she got in trouble for retracting her statement implicating him.

Several partygoers testified on defendant's behalf. Latita Mendez danced with Hill, and Erica Davies saw them dancing. Mendez claimed she was the only one to dance with Hill, but she also said that she left Hill to get a soda and returned after he was shot. Mack, Auten and Harris were in the backyard and did not see either defendant or a muzzle flash when Hill was shot. The homeowner did not see a flash and said her yard was dark. The only lights were on the deck. No footprints were found in the bushes by the fence. Page was at the party, but he was in the front not the backyard most of the time.

Although the defendant was charged with murder, on the basis of the foregoing evidence, the trial judge instructed the jury on the lesser included crimes of aggravated and reckless manslaughter. The jury acquitted defendant of murder and convicted him of aggravated manslaughter and possessing the .44 caliber handgun with the purpose of using it unlawfully against another and without a permit.

Defendant's attorney raises five issues on appeal. He argues:

I. WHERE THE STATE'S EVIDENCE INDICATED A PURPOSEFUL SHOOTING AND DEFENDANT DENIED ANY INVOLVEMENT, THE PROVISION OF JURY INSTRUCTIONS (OVER OBJECTION) ON LESSER INCLUDED OFFENSES OF MURDER BASED ON RECKLESSNESS HAD NO SUPPORT IN THE RECORD AND DEFENDANT'S CONVICTION OF AGGRAVATED MANSLAUGHTER WAS OBTAINED IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

III. THE JUDGE'S FAILURE TO PROVIDE A SPECIFIC JURY INSTRUCTION ON IDENTIFICATION DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

[At the court's direction, its recitation and discussion of points II, IV and V of the brief, the nine issues raised by defendant pro se, and the

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