On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 01-08-0854.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2007
Before Judges Axelrad, R. B. Coleman and Gilroy.
Defendant Benjamin Cox appeals from his January 2, 2004 judgment of conviction arising out of the shooting of Reginald Coley.*fn1 Following a jury trial, defendant was found guilty of first degree purposeful/knowing murder, N.J.S.A. 2C:11-3a(1) or (2) (count one) and second degree possession of a weapon (handgun) for unlawful purposes, N.J.S.A. 2C:39-4(a) (count two). He was found not guilty of third degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b (count three). Thereafter, the same jury found defendant guilty of count four, second degree certain persons not to have weapons, N.J.S.A. 2C:39-7. On January 2, 2004, defendant was sentenced to a life term with a thirty-year period of parole ineligibility on count one. Count two was merged with count one, and a consecutive ten-year term with a five-year parole disqualifier was imposed on count four.
As stated, this matter arises out of the shooting death of Reginald Coley, known by his street name as "Rahdo." Several hours after he had an altercation with Coley, defendant returned to Rosa Parks Boulevard, walked up to a vacant lot with his right hand covered in a white towel, and fired three shots. Two of the shots struck Coley, causing him to bleed to death. Purvis King, a distant cousin of Coley, saw defendant give a "hand motion" pointing toward Coley, who came from an alley. King saw defendant extend his right hand toward Coley. He did not see a gun, but he heard three shots fired. King then ran into the liquor store where Coley had collapsed and told police officers that "Mojigg" (defendant's street name) shot him. King identified defendant from photographs in a book and gave a statement. Defendant was arrested on June 23, 2001, in Wallington on other charges, and officers from the Paterson Police Department went to Wallington to interview him. Defendant was read his Miranda*fn2 rights and, without being asked a question, stated: "You guys probably think I killed that guy. What was I supposed to do, let him stomp a hole in my head?"
On appeal, defendant argues:
POINT I: THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING AGGRAVATED MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF MURDER (NOT RAISED BELOW).
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF AN UNSOLICITED AND SPONTANEOUS OUTBURST BY A CRITICAL STATE'S WITNESS AND FURTHER ERRED BY PERMITTING SUCH TESTIMONY TO BE READ TO THE JURY DURING DELIBERATIONS AS PART OF A READBACK.
POINT III: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER CONNECTING THE DEFENDANT WITH OTHER CRIMINAL CONDUCT.
POINT IV: THE TRIAL COURT ERRED IN PERMITTING THE STATE TO INTRODUCE AN AMMUNITION CLIP FOUND ON THE DEFENDANT'S PERSON INTO EVIDENCE.
POINT V: THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT TESTIMONY FROM PATROLMAN RODRIGUEZ AS AN EXCITED UTTERANCE PURSUANT TO N.J.R.E. 803(c)(2).
POINT VI: THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT TESTIMONY FROM THERESA PERRY AS AN EXCITED UTTERANCE PURSUANT TO N.J.R.E. 803(c)(2).
POINT VII: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY ...