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State v. Bass

November 12, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAVONTA BASS,*FN1 DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-08-1051 and 04-08-1052.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2008

Before Judges Parker, Yannotti and LeWinn.

Defendant was convicted of aggravated assault and certain weapons offenses. He appeals from his convictions and the sentences imposed. For the reasons that follow, we affirm.

I.

Defendant was charged under Union County Indictment No. 04-08-1051 with attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); aggravated assault, N.J.S.A. 2C:12-1b(2); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and possession of a handgun without a permit, N.J.S.A. 2C: 39-5b. In addition, defendant was charged under Union County Indictment No. 04-08-1052 with unlawful possession of a firearm by a convicted person, N.J.S.A. 2C:39-7b. Defendant was tried before a jury, although the charges in the two indictments were bifurcated.

At trial, the State presented evidence from which the jury could reasonably find the following facts. On the evening of May 13, 2004, Darius Julius attended a wake in Rahway with his cousins Alicia and Antoine Smart. They left Rahway at about 8:00 p.m. and drove back to Linden in Alicia's car. Alicia was driving. Julius was in the front passenger seat and Antoine was seated in the back. Alicia drove down St. George Avenue, turned left on Lincoln Street, and proceeded towards her home on Cleveland Street.

Defendant was standing with his girlfriend Tamara Hodge near Tamara's gold car at the intersection of Lincoln and Cleveland Streets. Hodge was in the car with her two young daughters, along with her half-sisters, Iesha and Tynesha Starling.

Alicia turned onto Cleveland Street and parked the car across from her house. She got out of the car and went inside to change her clothes. Shortly thereafter, Alicia returned to the car. Hodge drove her car past the driver's side of Alicia's car, and turned right onto McCandless Street.

Alicia went to put her car in reverse so that she could turn around and head down Lincoln Street. Defendant was dressed in dark clothing. He had a silver gun. He ran up to Alicia's car and started shooting at the passenger side. Although Julius did not realize it at first, he had been shot in his stomach and his left side.

Defendant ran towards McCandless Street and got into the back seat of Hodge's car. Defendant put the gun down the front of his pants. Hodge drove down St. George, over the railroad tracks to Charles Street. Defendant handed off the gun to a person on a bicycle. Hodge then drove to her home on Catherine Street in Elizabeth. The next day, Iesha told defendant that he had gotten her and Tynesha "in a mess." Defendant replied, "Come on, Iesha, this is my life you're talking about."

After the shooting, Alicia drove to Julius' home on East Curtis Street. Julius exited the car on his own power but collapsed in pain. The police responded to the scene. Julius was taken by ambulance to the hospital where an emergency exploratory laparotomy was performed. The procedure revealed extensive bleeding in Julius' abdominal cavity as well as wounds to his liver, diaphragm, stomach and colon.

Detectives from the Linden Police Department visited Julius in his hospital room on May 20, 2004. Julius identified defendant as the shooter. On May 24, 2004, Julius provided the detectives with a statement that was recorded. Julius again identified defendant as the shooter. A detective transcribed the audiotape of Julius' statement. On May 25, 2004, Julius went to police headquarters and, after he made certain corrections and additions to the statement, he signed it.

Defendant was found not guilty of attempted murder but guilty on the other charges. Defendant appeals and raises the following issues for our consideration:

POINT I.

THE TRIAL COURT'S EXCLUSION OF EXCULPATORY EVIDENCE, INDICATING THAT AN EYEWITNESS TO THE SHOOTING MADE A PHOTOGRAPHIC IDENTIFICATION OF SOMEONE OTHER THAN DEFENDANT AS THE GUNMAN, DEPRIVED DEFENDANT OF THE RIGHT TO PRESENT A DEFENSE AND THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST., AMEND., XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II.

THE TRIAL JUDGE'S REFUSAL TO PROVIDE A "FALSE IN ONE, FALSE IN ALL" JURY INSTRUCTION ON CREDIBILITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT III.

THE UNNECESSARY INTRODUCTION OF THE UNSANITIZED DETAILS OF DEFENDANT'S PRIOR CONVICTIONS TO PROVE HIS FORMER FELON STATUS VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. ...


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