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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. "> 198 N.J. 314"> Original Wordprocessor Version
(NOTE: The status of this decision is Unpublished.)
The status of this decision is unpublished
Original Wordprocessor Version
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(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE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:43-7.2, defendant must serve
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a1427-07.opn.html
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.
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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 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.
(continued)
(continued)
9
A-1427-07T4
December 11, 2008
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