On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 04-08-1042 and 04-08-1056.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and Waugh.
Defendant, James Vaughn, appeals from his convictions for murder, N.J.S.A. 2C:11-3(a)(1) and (2); felony murder, N.J.S.A. 2C:11-3(a)(3); attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a); burglary, N.J.S.A. 2C:18-2(a)(1); unlawful possession of a weapon, N.J.S.A. 2C:30-5(b); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). A motion for a new trial was denied. Defendant was also charged under a separate indictment and convicted pursuant to N.J.S.A. 2C:39-7a as a person not to have weapons. After a bench trial he was found guilty of this crime, and he was found to be subject to enhanced penalties pursuant to N.J.S.A. 2C:11-3b(4)(a) as the result of a prior murder conviction. He was sentenced to life without parole on the murder conviction and to a consecutive twenty-year sentence with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the attempted murder. Lesser concurrent sentences were imposed for other convictions.
On appeal, defendant presents the following arguments:
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING PASSION/PROVOCATION MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF PURPOSEFUL/KNOWING MURDER EMBODIED IN COUNT I, ESPECIALLY IN LIGHT OF ITS DECISION TO INSTRUCT THE JURY REGARDING ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF ATTEMPTED MURDER EMBODIED IN COUNT III.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL SINCE THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY IMPERMISSIBLY UTILIZING THE DEFENDANT'S PREVIOUS CONVICTIONS AND RESULTING SENTENCE IMPOSED THEREON TO ESSENTIALLY INFORM THE JURY THE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF MURDER.
SINCE THE DEFENSE MADE A PRIMA FACIE DEMONSTRATION THAT THE PROSECUTOR EXERCISED A PEREMPTORY CHALLENGE ON CONSTITUTIONALLY-IMPERMISSIBLE GROUNDS, THE DEFENDANT IS ENTITLED TO A REMAND TO REQUIRE THE PROSECUTION TO DEMONSTRATE THE PEREMPTORY CHALLENGE IN QUESTION WAS JUSTIFIABLE, WITH THE TRIAL COURT MAKING SPECIFIC FINDINGS WITH RESPECT TO THE PROSECUTION'S PROFFERED REASON(S) FOR EXERCISING THE CHALLENGE IN QUESTION.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO PRECLUDE THE EXPERT TESTIMONY OF THE MEDICAL EXAMINER REGARDING THE RANGE AT WHICH THE VICTIM WAS SHOT ARISING OUT OF A VIOLATION OF THE STATE'S DISCOVERY OBLIGATION.
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL WITH RESPECT TO COUNTS II AND IV OF THE INDICTMENT.
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS, OCCURRING OVER TWO DECADES PRIOR TO TRIAL, WERE ADMISSIBLE TO IMPEACH CREDIBILITY.
We reverse in part, remand in part, and conditionally affirm in part.
The trial record indicates that defendant, an Irvington resident working in Morris Township, developed a close personal relationship with a family consisting of Maxine McCaden, a seventy-two-year-old woman, her daughter, Ruth Bernadette Kennedy, and Kennedy's daughter, Sherie Graves. McCaden and Kennedy lived together in a house in Morristown; Graves was a frequent visitor. On Saturday July 19, 2003, defendant spent much of the afternoon at the McCaden/Kennedy household, drinking beer with a chaser of rum, first with McCaden, then with McCaden and Kennedy and, after 5:00 p.m., with the three women. However, according to Kennedy and Graves, as time went on, defendant got "nasty" and then increasingly quiet. At some point, Graves left the house with her children to return to the motel where she was then staying. Eventually, defendant was asked by Kennedy to leave. Although he did not immediately comply, instead getting himself another drink, he finally departed, speeding off in his truck.
While defendant was away from the house, at approximately 10:00 or 11:00 p.m., McCaden and Kennedy were visited by a neighbor from the other side of the street, Marjorie Forbes. The three were seated on the porch talking when defendant returned on foot. Kennedy testified at trial that, while standing on the sidewalk, defendant directed Forbes to leave. Forbes did not recall such a direction, but stated that something in defendant's manner caused her to leave. Kennedy testified that defendant then entered the house without her permission, and as a result, she went to the phone in the kitchen to call the police.
As Forbes crossed to the other side of the street, she heard gunshots and Kennedy crying "Marge please help." Forbes returned to the house and immediately encountered McCaden, lying on the floor in a pool of blood coming from her head. Forbes then proceeded to the kitchen where Kennedy was screaming. As Forbes entered the kitchen, she saw Kennedy on the floor begging for help and stating "don't kill me, don't kill me." Nonetheless, Forbes witnessed defendant reloading his gun and firing at Kennedy several times, hitting her once in the head. As he did so, he directed Forbes to go home, and he said either that "they are" or "she is" "fucking using me."
Forbes then returned to her home, where she called the police. The police witnesses testified that, on their arrival at the house, they found McCaden lying as Forbes had described near the front door. She was dead. There was no evidence that McCaden had moved after being hit. Kennedy was in the kitchen, severely wounded from bullets to her hand, right bicep, left forearm, right breast, right upper abdominal quadrant, left thigh, and head. When asked who had shot her, ...