On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-12-1274 and 03-12-1275.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2008
Before Judges Skillman, Graves and Grall.
A jury found defendant David Howard guilty of the purposeful or knowing murder of Anthony Baker on April 25, 2003, in the City of Elizabeth, in violation of N.J.S.A. 2C:11-3(a)(1), or (2) (count one); third-degree possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of a handgun for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (count three). In a separate indictment, defendant was charged with second-degree possession of a handgun by a convicted person, in violation of N.J.S.A. 2C:39-7(b)(1). In a second trial before the same jury,*fn1 defendant was convicted of the sole charge in the second indictment.
At defendant's sentencing hearing on March 4, 2005, the trial judge stated that defendant shot Anthony Baker "point blank in the chest. This was an execution. Although the victim Anthony Baker may have been involved in some improper behavior with respect to drugs at the time, the defendant executed the victim in cold blood." After merging count two into count three,*fn2 defendant was sentenced to a fifty-year prison term, with forty-two-and-one-half years of parole ineligibility, under the No Early Release Act, N.J.S.A. 2C:43-7.2. On count three (second-degree possession of a handgun for an unlawful purpose), the court imposed a concurrent four-year prison term.*fn3 On defendant's conviction for second-degree possession of a handgun by a previously convicted person, the court imposed a concurrent five-year prison term with a mandatory five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-7(b). Thus, defendant received a fifty-year sentence with an eighty-five percent disqualifier for murder, and concurrent sentences on his other convictions. Defendant was also ordered to pay $2000 in fines, $200 to the Violent Crimes Compensation Board, $225 to the Safe Neighborhood Services Fund, and $60 to the Law Enforcement Officers Training and Equipment Fund (LEOTEF).
On appeal, defendant presents the following arguments in a brief filed by counsel:
THE JURY INSTRUCTIONS WERE FATALLY FLAWED IN TWO RESPECTS: (1) FAILING TO CHARGE CAUSATION WHEN THE EVIDENCE INDICATED THAT A RELATIVE OF THE VICTIM, NOT DEFENDANT, MAY HAVE FIRED THE FATAL SHOT, AND (2) FAILING TO INSTRUCT THE JURY ON THE CLEARLY INDICATED LESSER-INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER (Not Raised Below).
B. PASSION/PROVOCATION MANSLAUGHTER
IN DIRECT VIOLATION OF STATE V. ALVAREZ, THE STATE IMPROPERLY REFUSED DEFENDANT'S STIPULATION THAT HE HAD THE REQUISITE PRIOR CONVICTION FOR THE COUNT OF THE INDICTMENT CHARGING CERTAIN PERSONS NOT TO HAVE A WEAPON.
A REMAND FOR MINOR SENTENCING AND MERGER ISSUES SHOULD BE ORDERED.
Additionally, defendant presents the following contentions in his pro se supplemental brief:
INTRODUCTION OF OTHER-CRIMES/ACTS EVIDENCE DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND CONSEQUENTLY REQUIRES REVERSAL OF THE CONVICTION.
DEFENDANT WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL WHEN HE WAS CALLED BOTH A RACIAL SLUR AND OBSCENITIES REPEATEDLY BY A MEMBER OF THE VICTIM'S FAMILY, WHO MADE VARIOUS OUTBURSTS AND DEMONSTRATED HIGHLY PREJUDICIAL BEHAVIOR WHILE TESTIFYING.
THE LOWER COURT ERRED BY NEGLECTING TO PROPERLY INSTRUCT THE JURY REGARDING MEDIA INFLUENCES AND COMMENTS ABOUT THE CASE FROM NON-JURORS, AND EXTRANEOUS PREJUDICES ARE RECORD SUPPORTED.
THE CUMULATIVE IMPACT OF THE ISSUES RAISED BY THE APPELLATE ATTORNEY AND RAISED IN THIS SUPPLEMENTAL LETTER BRIEF DEPRIVED DEFENDANT OF HIS STATE AND FEDERAL RIGHTS TO A FAIR TRIAL AND WARRANT REVERSAL.
Based on our review of the record, the briefs, and the applicable law, we are satisfied that defendant's arguments pertaining to his convictions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). However, we remand for resentencing because defendant has raised meritorious sentencing issues.
During defendant's trial, Joseph Baker testified that on April 24, 2003, between 10 and 11:00 p.m., he walked with his older brother, Anthony, and his cousin, West Johnson, to their aunt's house at 1010 Flora Street in Elizabeth. Flora Street intersects both Highway 1 & 9 and Catherine Street, which run parallel to each other. 1010 Flora Street is near Highway 1 & 9, while 1040 Flora is near Catherine Street.
When the trio arrived on Flora Street, Joseph observed "there [were] a lot of people out" on the street. While the three men were in the house at 1010 Flora Street, Denise Baker asked her cousin, Anthony Baker, who the men were that were across the street. Anthony took Denise to a window, and he pointed out Ismeel Lewis and defendant, who he identified as "Buck." About half an hour later, Joseph, Anthony, and West Johnson went outside and Joseph saw his brother have a short conversation with three men, who were "standing across the street." Joseph testified that when his brother returned, he said that he "told the three guys that they had to leave the area."
According to Joseph, the three men then left the area for awhile, but they were not gone for long. Joseph testified that defendant spoke briefly with Ismeel Lewis before crossing the street to 1010 Flora. Joseph described the shooting as follows:
Q: Where did [Buck] go when he crossed the street?
A: In front of 1010 Flora Street.
Q: He came to where you were?
A: Like, a couple of feet away from us.
Q: What was your brother doing just before Buck came across the street? What happened?
A: He was talking to somebody in a ...