On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-05-1829.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Fisher, Sapp-Peterson and Espinosa.
Defendant Jarod Harris appeals from the judgment of conviction and sentence imposed following a jury trial at which he was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2) (Count One); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (Count Two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Three). At sentencing, the court imposed an aggregate forty-eight year period of incarceration with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
The crimes for which defendant was convicted arose out of the January 20, 2003 slaying of Andre Simmons, who was found lying in a lot on Brenner Street in Newark after having been shot multiple times. When police arrived, Simmons was transported to a local hospital where he was pronounced dead. Police recovered five nine-millimeter casings, along with a black hat, from the crime scene. Two months after Simmons' fatal shooting, police responded to the area of the crime scene on a report of "recent shootings in the area." Police recovered a nine-millimeter revolver from under the staircase of an abandoned residence at 32 Kent Street.*fn1
The salient facts presented at trial pertinent to our discussion were disclosed by the victim's wife, two witnesses from the scene and defendant's girlfriend. According to the victim's wife, Patricia Simmons, defendant and Simmons had been friends since childhood but the relationship changed following the slaying of defendant's brother, Larry Harris.*fn2 Defendant suspected that Simmons had been involved with his brother's murder. Following Larry's death, Patricia witnessed defendant confronting her husband about Larry's death on three occasions, with the last confrontation occurring three weeks before his death. At that time, defendant approached a vehicle in which she was seated with her sister and he began to flirt with her sister. When Simmons approached the vehicle, defendant's demeanor changed and he questioned Simmons about whether he had been involved with his brother's murder. Simmons denied having anything to do with the killing.
Precious King testified that she lived near the crime scene and had gone to a local store around 9:00 p.m. on the evening of the shooting. As she was entering the store, she saw defendant, whom she had known since childhood, arguing with Simmons about Larry's death. She heard Simmons deny any involvement and tell defendant that he was married, had a family, and would not "stoop to that level." She said the argument continued outside while she was in the store and, when she exited, she heard someone tell defendant "that it wasn't worth it." She then entered her vehicle, driven by her husband, and as their vehicle turned right onto 10th Street, she saw Simmons walking away from the area where defendant had confronted him. She proceeded to her house on Kent Street, which runs parallel to Brenner Street.*fn3
Before entering her house, she heard six or seven shots, went in the direction of the shots she heard and found Simmons on the ground. Defendant was there and she heard him say "something about being Blood for Blood." She also observed defendant holding what appeared to be a pistol. She then saw a "young boy" approach defendant, take the pistol, and say to defendant, "it's not worth it."
Betty Rollins testified that she lived at 15 Brenner Street, which is across from the vacant lot where Simmons was shot. She had known defendant and Simmons for more than a dozen years. Around 9:30 p.m. on the evening of the shooting, she approached the front window on the first floor of her home to see if her cat was there. She peered out the window and noticed Simmons entering the empty lot with defendant approaching Simmons from behind. When defendant reached him, Simmons removed his hands from his pockets and raised his fists as if to defend himself, at which point defendant then began firing shots at Simmons. Rollins heard seven or more shots fired. She indicated that the men were only about six to eight feet from one another. She observed Simmons fall to the ground and defendant flee towards Kent Street. She testified that she could not see a gun during the shooting but she saw defendant carrying a gun when he left the scene. She then exited her home, yelled to a neighbor to call the police, and proceeded to comfort Simmons, who was unable to talk. Rollins also testified that in November 2002, she recalled hearing defendant state, in Simmons' presence, that he was "going to get everyone who had something to do with his late brother's death."
During the course of the investigation, police learned that Kena Whitlock was defendant's girlfriend. She agreed to speak to the police. In a sworn statement, Whitlock told police that a couple of days after the murder, defendant told her that he had shot someone in Newark for reasons associated with Larry's death. She and defendant discussed the possibility of him surrendering to authorities. She explained that defendant considered doing so because "he was stressing about the whole situation."
A few days after giving her statement, Whitlock attempted suicide. She subsequently returned to the police station seeking to retract portions of her statement, but was not given an opportunity to do so. At trial, Whitlock initially took the witness stand before the jury and when the prosecutor asked her where she lived, she responded, "I refuse to testify." However, she apparently changed her mind after further discussions with her attorney and testified several days later.
Whitlock testified that the earlier sworn statement she provided to police had not been a truthful statement. She indicated she lied because the police told her that if she refused to cooperate, she could be charged with murder and conspiracy. She told the jury that none of the statements she made about what defendant said to her was true.
On appeal, defendant raises the following points for our consideration:
THE SEQUENTIAL "GUILTY FIRST" JURY INSTRUCTIONS AND VERDICT SHEET, TOLD THE JURY, IN VIOLATION OF STATE V. COYLE, 119 N.J. 194 (1990), TO DELIBERATE ON PASSION/PROVOCATION MANSLAUGHTER ONLY AFTER FINDING DEFENDANT GUILTY OF MURDER. FURTHERMORE, THE INSTRUCTIONS ON THE BURDEN OF PROOF WERE AMBIGUOUS. IN ONE INSTANCE THE JUDGE CORRECTLY INSTRUCTED THE JURY ON THE STATE'S BURDEN TO DISPROVE THE ELEMENTS OF PASSION/PROVOCATION MANSLAUGHTER. HOWEVER, IN OTHER INSTANCES, INCLUDING ON THE VERDICT SHEET, THE JUDGE IMPLICITLY SHIFTED TO DEFENDANT THE BURDEN OF PROVING HE ACTED IN THE HEAT OF PASSION FROM A REASONABLE PROVOCATION. (NOT RAISED BELOW).
THE ADMISSION OF KENA WHITLOCK'S PRIOR INCONSISTENT STATEMENTS WAS CONTRARY TO THE LAW OF STATE V. GROSS, 121 N.J. 1 (1990), AND DENIED DEFENDANT A FAIR TRIAL AND HIS RIGHT TO CONFRONTATION. (U.S. CONST. AMEND. VI; N.J. CONST.  ART. I, [¶] 10).
THE COURT MADE TWO INSTRUCTIONAL ERRORS BY OMISSION[,] BOTH OF WHICH WERE FATAL TO DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. THE COURT ERRED IN FAILING TO CAUTION THE JURY AS TO THE UNRELIABLE NATURE OF TESTIMONY ATTESTING TO NON-MEMORIALIZED ORAL STATEMENTS MADE BY THE DEFENDANT. THE COURT FURTHER ERRED IN FAILING TO PROPERLY INSTRUCT THE JURY AFTER A WITNESS REFUSED TO TESTIFY BEFORE THEM. (NOT RAISED BELOW).
A. THE COURT FAILED TO CAUTION THE JURY ON THE INHERENT UNRELIABILITY OF ORAL STATEMENTS.
B. DEFENDANT WAS DENIED A FAIR TRIAL BY THE COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY AFTER A WITNESS REFUSED TO TESTIFY BEFORE THEM.
THE PROCEDURE FOR ADMISSION TO DEFENDANT'S TRIAL AUTHORIZED BY THE COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A PUBLIC TRIAL. (PARTIALLY RAISED BELOW).
THE SENTENCE IMPOSED ON THE MURDER CONVICTION IS MANIFESTLY EXCESSIVE. THE SENTENCE IMPOSED ON THE UNLAWFUL POSSESSION OF A WEAPON CONVICTION VIOLATES DEFENDANT'S RIGHT TO DUE PROCESS AND HIS RIGHT TO A JURY TRIAL.
A. THE 48[-]YEAR TERM IS MANIFESTLY EXCESSIVE.
B. THE MAXIMUM TERM ON THE THIRD-DEGREE OFFENSE VIOLATES DEFENDANT'S RIGHT TO DUE PROCESS AND HIS RIGHT TO A JURY TRIAL.
Based upon our careful review of the record and in light of the applicable legal principles, we reject each of the points raised. With the exception of the arguments raised in support of Points I, III and V, the remaining arguments advanced in support of Points II and IV are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant contends the court's instruction on murder and passion/provocation manslaughter required the jury to first find defendant guilty of murder before considering passion/provocation manslaughter and, in doing so, wrongfully shifted the State's burden to prove the elements of manslaughter to defendant. We disagree.
Initially, because the defense did not raise an objection to the court's charge on murder and passion/provocation manslaughter, we review the jury instructions under the plain error standard. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997) (stating that a "reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result"). Plain error is not simply any possibility of error but is an error of such consequence, to raise "a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Clear and understandable jury instructions are essential in giving a criminal defendant a fair trial. State v. Concepcion, 111 N.J. 373, 379 (1988). Thus, the trial court has a duty to clearly instruct a jury on the law governing the case. State v. Butler, 27 N.J. 560, 595 (1958). The charge provided by the court must give a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). In determining whether there is error in a charge, the charge must ...