STATE OF NEW JERSEY v. KEVIN B. ROGERS

This case can also be found at 198 N.J. 314, 966 A.2d 1079.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1427-07T41427-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN B. ROGERS,

Defendant-Appellant.

________________________________________

 

Argued November 12, 2008 - Decided

Before Judges Winkelstein, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-08-1621B.

Stephen F. Funk argued the cause for appellant (Jacobs & Barbone, P.A., attorneys; Mr. Funk, on the brief).

Jack J. Lipari, Assistant County Prosecutor, argued the cause for respondent (Theodore F. L. Housel, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the brief).

PER CURIAM

Defendant Kevin B. Rogers, indicted for the murder of Royden Parks, N.J.S.A. 2C:11-3(a)(1) and (2), was convicted by a jury of the lesser included offense of aggravated manslaughter, N.J.S.A. 2C:11-4(a). He was also convicted by the jury of possession of a weapon (a hammer) for an unlawful purpose, N.J.S.A. 2C:39-4(d), and possession of a weapon (a frying pan) for an unlawful purpose, N.J.S.A. 2C:39-4(d). We affirm.

On May 10, 2005, defendant and the victim, Royden Parks, became involved in a physical altercation at defendant's home. During the fight, defendant hit Parks in the head with a hammer and frying pan, fracturing Parks's skull and killing him. Defendant attempted to clean up the blood in his house from the killing, and he dragged Parks's body to the street where it was discovered by a passerby.

Physical evidence at the scene confirmed that defendant had killed Parks in defendant's house. The police found drag marks at the rear of defendant's house. After obtaining a search warrant, law enforcement officers entered the house and found blood stains on the floor, carpeting, and walls. DNA testing of the blood on a hammer, carpet, and blue jeans found in defendant's house matched that of Parks. The medical examiner testified that Parks's head had multiple scalp lacerations and skull fractures, and he found crescent shaped wounds consistent with a hammer.

At trial defendant asserted the claim of self-defense. In his tape recorded statement to the police on May 13, 2005, and in his testimony at trial, defendant contended that Parks had been the aggressor. According to defendant, Parks, who was a person known to him, had been using defendant's yard to stash drugs, despite defendant's objections. On the day of the death, Parks entered defendant's residence uninvited and when he was asked to leave, an argument erupted. The confrontation escalated into a fight when Parks grabbed and pushed defendant. During the course of the ensuing struggle, Parks choked defendant and threatened to kill him, so that defendant became fearful for his life. Defendant maintained that he had to use force to defend himself. To buttress his assertion that Parks was the aggressor, defendant presented the testimony of three witnesses who testified to Parks's aggressive character.

Defendant also sought to present the testimony of Calvin Gunn to further prove Parks's violent and aggressive character. He sought to introduce this evidence in order to support his self-defense theory and to support a finding of the lesser included offense of manslaughter in the event his claim of self-defense was rejected. In a pretrial taped interview, Gunn had stated that in April 2004, he told Parks to stop selling marijuana at Gunn's grandmother's house. When Parks failed to stop, Gunn disposed of the marijuana and told Parks that he had done so. Thereafter, Parks assaulted and robbed Gunn. While Gunn filed a complaint, it was eventually dismissed, due to Gunn's nonappearance when he moved to a new address and did not receive the trial notice. On another occasion, Parks pulled a gun upon seeing Gunn, and in a third incident, Parks and his cohorts attempted to assault Gunn. The trial court ruled that defendant would not be allowed to present this testimony from Gunn, ruling that this evidence was excluded under N.J.R.E. 404(a)(2) and (b) and N.J.R.E. 403.

At sentencing, the trial court merged the two convictions for possession of a weapon for unlawful purposes into the aggravated manslaughter conviction and sentenced defendant to a term of twenty years in State prison. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, defendant must serve eighty-five percent of this sentence before being eligible for parole. He is also subject to five years of mandatory parole supervision. The court also assessed the requisite monetary penalties and ordered restitution in the sum of $3,116.

In this appeal, defendant contends that the trial court's evidentiary ruling excluding Gunn's testimony was in error and warrants reversal of the conviction and a new trial. Specifically, defendant raises the following points on appeal:

POINT I

THE TRIAL COURT ERRED BY EXCLUDING THE TESTIMONY OF CALVIN GUNN REGARDING PARKS' ASSAULTS UPON HIM PURSUANT TO N.J.R.E. 404(a)(2), 405, 403 and AGUIAR BECAUSE TESTIMONY REGARDING SPECIFIC INSTANCES OF CONDUCT IS EXPRESSELY [SIC] ALLOWED WHEN CHARACTER IS AN ELEMENT OF THE CHARGE OR DEFENSE, WHICH IT WAS IN THIS CASE

A. PARKS' CHARACTER WAS AN ESSENTIAL ELEMENT OF KEVIN'S SELF-DEFENSE THEORY OF THE CASE

B. PARKS' CHARACTER WAS AN ESSENTIAL

ELEMENT OF THE LESSER INCLUDED OFFENSE

OF PASSION/PROVOCATION MANSLAUGHTER

POINT III [SIC]

THE ERRORS OUTLINED ABOVE CAST SUFFICIENT DOUBT ON THE OUTCOME OF THE TRIAL AS TO REQUIRE REVERSAL AND A NEW TRIAL

In our review, we apply the abuse of discretion standard, recognizing that the admission or exclusion of evidence falls within the discretion of the trial judge. State v. Buda, 195 N.J. 278, 294-95 (2008).

At the outset, we note that proof of Parks's violent and aggressive character was relevant and admissible. While evidence of a person's character or character trait is generally inadmissible to prove that the person acted in conformity with that trait, N.J.R.E. 404(a), two exceptions to this rule apply here. First, the accused may present "[e]vidence of a pertinent trait of character of the victim of the crime," and second, "[e]vidence of a person's character or trait of character is admissible when that character or trait is an element of a claim or defense." N.J.R.E. 404(a)(2); N.J.R.E. 404(c). Where self-defense is asserted, the victim's violent character is relevant and admissible under N.J.R.E. 404 because "(1) it demonstrates the victim's propensity for violence, which tends to support an inference that the victim was the initial aggressor; and (2) where the accused has knowledge of the victim's prior violent acts, it tends to show the reasonableness of the accused's belief that the use of self-defense against the victim was necessary." State v. Jenewicz, 193 N.J. 440, 457 (2008). Thus, evidence of Parks's aggressive character was admissible to support defendant's contention that the victim was the initial aggressor.

Having determined that character evidence of Parks's violent and aggressive nature is relevant and admissible, we next must determine if the proffered testimony of Gunn is in fact admissible character evidence. The general rule is that character or a trait of character may be proved "by evidence of reputation, evidence in the form of opinion, or evidence of conviction of a crime which tends to prove the trait." N.J.R.E. 405(a). With the exception of convictions of a crime, specific instances of conduct are ordinarily not admissible to prove character or a character trait. Ibid. In this case, Gunn's proffered testimony would have provided evidence of specific instances of conduct, rather than reputation or opinion evidence, and would thus be inadmissible under the general rule.

One exception to this general rule, however, provides that: "[w]hen character or a trait of character of a person is an essential element of a charge, claim, or defense, evidence of specific instances of conduct may also be admitted." N.J.R.E. 405(b) (emphasis supplied). Defendant argues that the aggressive and violent character of Parks was an "essential element" of his self-defense theory and an "essential element" of the lesser included offense of passion/provocation manslaughter under N.J.S.A. 2C:11-4(b)(2).

The Supreme Court in State v. Jenewicz, supra, 193 N.J. at 461-62, decided after the trial below, squarely rejects this argument on the issue of self-defense. In Jenewicz, the defendant, in support of his self-defense theory, sought to have a witness testify about an incident in which the victim had been the aggressor toward the defendant. Id. at 456-57. The Court noted that a defendant can successfully assert self-defense without offering any evidence about the victim's character. Id. at 461-62. As a result, character evidence was not an "essential" part of self-defense for purposes of N.J.R.E. 405, and the testimony was not admissible as character evidence under that Rule. Ibid. Similarly, then, Gunn's testimony concerning specific aggressive past conduct by the victim and unknown to defendant at the time of the fight was inadmissible on the issue of self-defense.

A similar analysis makes clear that the proposed testimony is also not admissible on the lesser included offense of passion/provocation manslaughter. Proof of the victim's aggressive character is not an essential element of the crime of passion/provocation manslaughter. Passion/provocation manslaughter is "[m]urder that is committed in the heat of passion induced by a reasonable provocation." State v. Rambo, 401 N.J. Super. 506, 514 (App. Div. 2008). The four elements of passion/provocation manslaughter are: "the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." Id. at 515 (quoting State v. Viera, 346 N.J. Super. 198, 212 (App. Div. 2001), certif. denied, 174 N.J. 38 (2002)). Since the victim's aggressive nature was not an essential element of passion/provocation manslaughter, evidence of his specific aggressive acts were inadmissible under N.J.R.E. 405(b).

Accordingly, the trial court properly found Gunn's proposed testimony inadmissible. The judgment of conviction is affirmed.

State v. Aguiar, 322 N.J. Super. 175 (App. Div. 1999).

This second reason does not apply in this case because the record does not demonstrate that defendant was aware of the Gunn incidents at the time of the fight.

The Court did find the evidence ultimately admissible, with limiting instructions, because the defendant had knowledge of the incident at the time, and thus, "it was probative of the reasonableness of [defendant's] belief in the need to use self-defense." State v. Jenewicz, supra, 193 N.J. at 463.

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A-1427-07T4

December 11, 2008