On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-09-0959.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2007
Before Judges Winkelstein, Yannotti and LeWinn.
Defendant David Terrell Starr was charged under a Union County indictment with murder, N.J.S.A. 2C:11-3a(1) and/or (2) (count one); felony murder, N.J.S.A. 2C:11-3a(3) (count two); robbery, N.J.S.A. 2C:15-1 (count three); unlawful possession a firearm, N.J.S.A. 2C:58-4 (count four); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count five). Defendant was tried to a jury which found him guilty on all charges.
Defendant appeals from his judgment of conviction and raises the following contentions for our consideration:
POINT I: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE PROSECUTOR'S MISUSE OF DR. BAKOWSKA'S EXPERT TESTIMONY (Not raised below).
A. THE PROSECUTOR ELICITED AN IRRELEVANT AND IMPROPER "NET OPINION" FROM DR. BAKOWSKA (Not raised below).
B. EVEN IF RELEVANT THE EVIDENCE SHOULD HAVE BEEN EXCLUDED UNDER N.J.R.E. 403 (Not raised below).
C. THE JURY WAS NOT INSTRUCTED AS TO THE PROHIBITED USE OF THE EVIDENCE (Not raised below).
POINT II: THE TRIAL COURT'S RULING PRELCUDING THE DEFENDANT FROM ADMITTING PROOF OF L.J.'S GANG INVOLVEMENT TO SHOW THIRD-PARTY GUILT CONSTITUTED REVERSIBLE ERROR.
POINT III: TESTIMONY THAT THE DEFENDANT WAS A MEMBER OF THE "BLOODS" GANG CONSTITUTED HARMFUL ERROR.
POINT IV: THE TRIAL COURT'S "GOOD NEWS" COMMENT MADE IMMEDIATELY AFTER DEFENSE COUNSEL RESTED WITHOUT PRODUCING ANY WITNESSES DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE IT AMOUNTED TO A JUDICIAL ENDORSEMENT OF THE STATE'S CASE (Not raised below).
POINT V: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (Not raised below).
A. THE PROSECUTOR IMPROPERLY MALIGNED THE DEFENSE AND DEFENSE COUNSEL (Not raised below).
B. THE PROSECUTOR IMPROPERLY INJECTED THE CONCEPT OF DEFENDANT'S "INNOCENCE" IN HIS SUMMATION (Not raised below).
C. COMMENTS MADE BY THE PROSECUTOR IN SUMMATION CONCERNING THE DEFENDANT'S HANDWRITING WERE IMPROPER BECAUSE THEY REQUIRED EXPERT TESTIMONY TO SUPPORT THEM (Not raised below).
POINT VI: THE AGGREGATE 60 YEAR BASE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION, AND VIOLATED STATE v. NATALE.
A. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A BASE SENTENCE ON THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE THAT EXCEEDED THE STATUTORILY AUTHORIZED MINIMUM BASE SENTENCE OF 30 YEARS.
B. THE DEFENDANT'S CONVICTION FOR MURDER ON COUNT ONE AND FELONY MURDER ON COUNT TWO SHOULD HAVE BEEN MERGED.
For the reasons that follow, we affirm defendant's convictions and the sentence imposed for murder. We remand for merger of the counts charging murder and felony murder, and imposition of a sentence for the robbery conviction.
We briefly summarize the key evidence presented at trial. On March 14, 2003, at approximately 7:05 a.m., Officer Sean McGuire (McGuire) of the Plainfield Police Department (PPD) was dispatched to a residence on Evona Avenue based on a report that a man was bleeding from the head. McGuire entered the residence and was directed to the basement, where he observed L.J. laying on a mattress in the rear of the basement. L.J. was alive, but his heart rate was rapid and breathing labored.
McGuire immediately called for the rescue squad, which responded to the scene and attempted to perform medical treatment upon the victim. L.J. was pronounced dead at 7:43 a.m. He was fifteen years old at the time. McGuire testified that, while in the basement of the Evona Avenue residence, he observed a plastic bag containing suspected crack cocaine on an "entertainment center" that held a television.
Dr. Leonard Zaretski (Zaretski) performed an autopsy on L.J.'s body the following day. Zaretski testified that L.J. died as a result of two gunshot wounds to the head. Detective Michael Sandford of the Union County Police Department testified that the bullets removed from L.J.'s body were .32 caliber projectiles, and were fired from the same weapon. Officer Glenn Trescott (Trescott) of the PPD testified that he found .32 caliber ammunition behind an air duct in the basement of the residence. He also found a .45 caliber handgun, a 9 millimeter handgun, suspected cocaine, and twenty three bags of marijuana.
T.J. is L.J.'s mother. T.J. testified that in March 2003, she was living in the residence on Evona Avenue with L.J., her daughters S.T.J., S.I.J., and S.A.J., and another son, K.J. T.J. testified that L.J. slept in the finished basement of the house.
T.J. stated that on the morning of March 14, 2003, she asked S.I.J. to go and wake L.J. S.I.J. returned with a paper towel full of blood and said that L.J. would not wake up. T.J. went to the basement. She shook L.J. and lifted his arms. He gasped for air but did not verbally respond. T.J. called the police.
T.J. stated that defendant was L.J.'s cousin. Defendant slept in her home during the evening of March 13, 2003. K.C., to whom T.J. referred as her "godbrother," also stayed in the house that night. K.C. slept in the living room on the first floor.
T.J. said that the stairway from the first floor was the only way to gain access to the basement. There was a window in the basement but the window was screwed shut. T.J. also said that there were two entrances on the first floor of the house.
The front door had two locks, one of which was a dead bolt lock. The back door had similar locks. In addition, T.J. had a dog that was free to roam around the house. According to ...