On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 04-04-0455.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges Fuentes and Gilroy.
On April 14, 2004, a Cumberland County Grand Jury charged defendant with felony murder, N.J.S.A. 2C:11-3a(3) (count one); murder, N.J.S.A. 2C:11-3a(1) or (2) (count two); first-degree robbery, N.J.S.A. 2C:15-1a (count three); second-degree possession of a weapon (a handgun) for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five); third-degree distribution of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (count six); and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b (count seven). A jury found defendant guilty of counts two, four, five, and seven. The court dismissed the remaining counts during trial.
On October 16, 2006, the court sentenced defendant on count two to a sixty-year extended term of imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a five-year period of parole supervision upon release. After merging the conviction on count four with the conviction on count two, the court sentenced defendant on counts five and seven to five years and ten years of imprisonment, respectively, the sentences to run concurrent with each other and with the sentence imposed on count two. The court also imposed all appropriate fines and penalties.
Because defendant does not contend that the verdicts were against the weight of the evidence, we need only state the core facts to place the appeal in context. We will describe and discuss other relevant facts as necessary during our disposition of the issues raised on appeal.
Defendant is a drug dealer. Prior to Richard Gray's death, defendant gave Gray ten pounds of marijuana to sell to third parties on a promise that Gray would, in turn, pay defendant $8,500 for the marijuana after Gray sold it. On May 26, 2003, because Gray had not paid defendant for the marijuana, defendant shot and killed him from a distance of approximately two to four feet with a semi-automatic handgun. After shooting Gray, defendant retrieved a brown bag containing marijuana off the ground, fled the scene through the woods behind the property where the murder occurred, went to a party, and got drunk.
Early in the morning of May 29, 2003, defendant traveled via bus to New York City and discarded his semi-automatic handgun in a parking garage near the Port Authority Building. Upon returning to New Jersey and learning that the police were looking for him, defendant turned himself into the Bridgeton Police Department. The New Jersey State Police transported defendant to a nearby State Police barracks where defendant confessed to two State Police detectives to having committed the murder. Defendant drew a map of the location where he had disposed of the handgun in New York City, and the State Police recovered the gun that day. A ballistics test determined that the bullet recovered from Gray's body came from defendant's handgun.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO CHARGE PASSION/PROVOCATION MANSLAUGH[T]ER AS A LESSER-INCLUDED OFFENSE OF MURDER, BECAUSE THE EVIDENCE REVEALED THAT DURING AN ARGUMENT THE DECEDENT REACHED FOR A BAG THAT DEFENDANT BELIEVED TO CONTAIN A WEAPON.
DEFENDANT WAS DENIED A FAIR TRIAL WHEN HIS TAPE-RECORDED STATEMENT WAS NOT REDACTED TO OMIT A REFERENCE TO THE FACT THAT HE HAD PREVIOUSLY BEEN INCARCERATED (PARTIALLY RAISED BELOW).
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (NOT RAISED BELOW).
THE 60 YEAR EXTENDED-TERM SENTENCE IS EXCESSIVE.
We affirm the convictions and sentences; however, for reasons discussed infra, we remand to correct the judgment of conviction.
In Point II of his brief, defendant argues that he was denied a fair trial because the trial court failed to redact a certain portion of his tape-recorded confession indicating that he had been incarcerated prior to the murder before the tape was played for the jury in violation of N.J.R.E. 404(b). Defendant contends that the court's curative instruction was insufficient to ameliorate any prejudice caused by the jury hearing the unredacted statement. Defendant asserts that the error was compounded by the jury having access to the audiotape during its deliberations. Lastly, defendant argues that he was denied effective assistance of counsel by his attorney failing to request that the recorded statement be redacted pretrial. Although we agree it was improper for the jury to have heard evidence that defendant was previously incarcerated, we conclude that the error does not warrant reversal.
At trial, the State played defendant's entire tape-recorded confession to the jury.*fn1 During the interrogation, the following colloquy occurred between New Jersey State Police Detective William Henry and defendant when the detective questioned defendant concerning the handgun defendant used in committing the murder:
[Detective:] How long have you had that gun?
[Defendant:] Since I been home. Three months.
[Detective:] Since February?
[Defendant:] Yeah. February 24th.
[Detective:] How about, how about the gun? [Defendant:] I been have that since way back in the day. ...