On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-09-3383.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Stern, C.S. Fisher and C.L. Miniman.
Defendant Gregory Clark (defendant) and his co-defendant Larry Henderson (Henderson) were charged with the first-degree murder of Rodney Harper on January 1, 2003, N.J.S.A. 2C:11- 3(a)(1). Defendant was also charged with other offenses arising from the same incident, including second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two), third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count four), and second-degree being a person not permitted to be in possession of a weapon, N.J.S.A. 2C:39-7(b) (count five).
The jury heard testimony that, in the early morning hours of January 1, 2003, Harper and James Womble were smoking crack cocaine at Womble's apartment in Camden. At approximately 2:45 a.m., there was a knock at the door, which Womble answered. One of the two men at the door was defendant, known to Womble as "Bubbles." Womble later identified the other man as Henderson.
According to Womble, Henderson pointed a gun at him and said, "[d]on't move, you're not involved." Defendant, according to Womble, went into another room of the apartment and began arguing with Harper about money. Womble heard Harper say, "do what you gotta do," following which he heard a gunshot. Womble testified that he then entered the other room where Harper sat bleeding from the chest. Defendant was still present and Womble offered to get the money that Harper apparently owed to defendant; he pleaded with defendant not to shoot Harper again. Defendant and Henderson left the apartment, and as they left, according to Womble, defendant said to him: "[d]on't rat me out, I know where you live."
At the conclusion of the trial, defendant was acquitted of murder, but found guilty of the lesser-included second-degree offense of reckless manslaughter. He was also found guilty on counts two and four. Following the rendering of that verdict, a trial occurred as to count five, as to which defendant was found guilty.
At sentencing, the judge merged count two into the manslaughter conviction and imposed an extended fifteen-year term, with an 85% period of parole ineligibility. The judge also imposed a four-year term on count four and a seven-year term, with a five-year period of parole ineligibility, on count five; these terms were ordered to run concurrently to each other but consecutive to the term imposed on the manslaughter conviction.
Defendant appealed.*fn1 The brief filed by his assigned counsel raises the following arguments for our consideration:
I. THE TRIAL COURT FAILED TO ADEQUATELY INSTRUCT THE JURY REGARDING THE DEFENDANT'S SECOND TRIAL IN WHICH HE WAS CHARGED WITH POSSESSION OF A WEAPON (A FIREARM) BY A CONVICTED FELON PURSUANT TO N.J.S.A. 2C:39-7(d) (NOT RAISED BELOW).
II. THE TRIAL COURT ERRED BY FAILING TO ENTER A JUDGMENT OF ACQUITTAL SUA SPONTE REGARDING THE CHARGE OF MURDER EMBODIED IN COUNT I, THEREBY NECESSARILY TAINTING THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THE LESSER INCLUDED OFFENSE OF RECKLESS MANSLAUGHTER ARISING THEREFROM.
III. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE (NOT RAISED BELOW).
IV. THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A HANDGUN WITHOUT A PERMIT INTO COUNT V CHARGING POSSESSION OF A WEAPON ...