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State v. Boyer

Decided: December 8, 1987.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FORREST L. BOYER, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Petrella, Dreier and Baime. The opinion of the court was delivered by Dreier, J.A.D.

Dreier

[221 NJSuper Page 390] Defendant appeals from his conviction of felony murder, N.J.S.A. 2C:11-3a(3); armed robbery, N.J.S.A. 2C:15-1; attempted

distribution of controlled dangerous substances, N.J.S.A. 24:21-19a and 2C:5-1; terroristic threats, N.J.S.A. 2C:12-3b; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a and unlawful possession of a handgun, N.J.S.A. 2C:39-5b. He was sentenced to a term of life with a 30-year parole ineligibility for the felony murder, to a consecutive 10-year term with a four-year period of parole ineligibility for the possession of the weapon for an unlawful purpose, and to concurrent five-year terms for each of the offenses of attempted distribution, terroristic threats and unlawful possession of a handgun. The armed robbery conviction was merged into the felony murder. Defendant's total sentence, therefore, was life plus 10 years with a 34-year period of parole ineligibility.

At approximately 12:30 a.m. on August 3, 1984, Dawn Andre and the homicide victim, Clarence Maxwell, were sitting on Dawn's father's car which was parked in front of Dawn's house. Jihad Muhammed (a/k/a Dale Mayo) and defendant Forrest Boyer asked Dawn's sister, Debbie, who was sitting on some steps across the street, if she wanted to buy some drugs. When she declined, Muhammed crossed the street and asked the victim and Dawn if they wanted to purchase some. They declined, but Dawn went into her house to ask her mother if she wanted amphetamines which she sometimes used as diet pills. When Dawn came back outside to tell Muhammed that her mother did not want to purchase any pills, Dawn overheard Muhammed say to Clarence "I'm going to remember you." Muhammed then called to defendant, who was still talking about drugs with Debbie, to come over. Muhammed and defendant talked about Dawn for a few minutes, and then they left.

Approximately twenty minutes later, Muhammed and defendant returned, Muhammed armed with a pistol and a shotgun. Muhammed pointed the pistol at Dawn and the victim and told them "don't move or I'll blow your head off." Muhammed began to argue with Clarence about buying drugs. Dawn tried to run into her house to get her father, but Muhammed fired a

shot at the ground by her feet. Muhammed then handed the pistol to defendant who put it in his waistband.

Defendant grabbed Dawn's pocketbook which was on the roof of Dawn's father's car and started emptying the purse out on Clarence's car which was parked right behind Dawn's father's car. Although Dawn testified that nothing was taken from her purse, defendant confessed to the police that he "took the reefer out of the pocketbook."

As defendant was searching through Dawn's purse, Thomas Vincent, the boyfriend of Dawn's sister, opened the front door of the Andre house. Muhammed threatened to kill Thomas, so Thomas went back into the house and woke up the Andre family. Then, Muhammed shot Clarence with the shotgun. Ronald Andre, Dawn's father, came outside to see what all the noise was about. Muhammed yelled to Mr. Andre that he had better go back into the house or else he would shoot him. Then, defendant turned and said, "I'll shoot this one myself." Mr. Andre went back into his house, and Muhammed and defendant walked away.

Defendant voluntarily turned himself in to the police on August 9, 1984. Clarence Maxwell died on August 29, 1984 from complications resulting from the gunshot wound.

Defendant's jury selection was initially completed on May 7, 1985, and the trial began the same day. On May 8, 1985, the court denied defendant's motion for a mistrial based on the court's decision to reopen the jury selection process to replace a juror dismissed for cause after opening statements.

Defendant raised the following points on appeal.

POINT I

The court abused its discretion in the procedure used in selecting the jury.

(A)

As the jury was impanelled and sworn and as opening statements were completed it was improper to reopen the jury selection process.

(B)

Defendant's conviction should be reversed as the jury selection was contrary to double jeopardy principles as delineated by New Jersey Courts.

POINT II

The court erred in admitting portions of defendant's statement in evidence.

POINT III

The court's charge to the jury was defective (not raised below).

(A)

The court committed reversible error by not charging the jury on manslaughter.

(B)

The court's charge on aiding and abetting ...


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