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State v. Holmes

March 3, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN HOLMES, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-05-517.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 3, 2010

Before Judges Graves and J. N. Harris.

Defendant was convicted by a jury of second degree burglary, N.J.S.A. 2C:18-2(a)(1). He was thereafter sentenced to a term of five years incarceration, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant now seeks reversal of this conviction, based upon the following challenges:

POINT I

THE PROSECUTOR'S COMMENTS IN SUMMATION HIGHLIGHTED DEFENDANT'S FAILURE TO TESTIFY, DEPRIVING DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9. 10) (NOT RAISED BELOW).

POINT II

THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (NOT RAISED BELOW).

We have considered these arguments in light of the record and applicable legal standards. We affirm.

Defendant and his former paramour of three years mutually agreed upon an informal shared child custody arrangement for their then thirteen-month old daughter. On Christmas Eve 2005, defendant was scheduled to drop the child at the home of the mother early in the morning. At that time, the child's mother was romantically involved with another man.

Shortly after 7:00 a.m., defendant arrived without his daughter--apparently not intending to drop the child off--and approached the door of the mother's residence. Immediately upon opening the door to the apartment, defendant entered, and a fight quickly ensued between defendant and the replacement boyfriend. During the struggle, defendant was injured, suffering a stab wound to his back that had been inflicted by the boyfriend, apparently in self-defense. Defendant immediately fled the scene.

Around 8:00 a.m., the police arrived in response to a 9-1-1 call. Defendant's former paramour and her boyfriend accompanied the police officers to police headquarters where they provided statements of what took place earlier that morning in their apartment. Later in the day, defendant also arrived at police headquarters where, upon observing defendant's ...


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