On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-03-0460.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 15, 2010 -
Before Judges Grall, C.L. Miniman and LeWinn.
A jury acquitted defendant Jerrell Moore of murder, N.J.S.A. 2C:11-3, but found him guilty of second-degree passion- provocation manslaughter, N.J.S.A. 2C:11-4(b)(2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b).*fn1 The judge merged the convictions for possession with an unlawful purpose and manslaughter, and sentenced defendant, on manslaughter, to a ten-year term of imprisonment, subject to parole ineligibility and supervision terms mandated by N.J.S.A. 2C:43-7.2, and, on possession of a handgun without a permit, to a concurrent five-year term. Appropriate fines, penalties, and assessments were also imposed.
Defendant appeals. He claims error warranting reversal of his convictions based on: the State's admission of a witness's prior statement to rebut a suggestion of recent fabrication; admission of evidence that defendant purchased ammunition and practiced shooting at a firing range prior to this homicide; and prosecutorial excess in the State's opening and closing statements. Defendant also contends that the judge abused his discretion in imposing the maximum sentence for manslaughter. Finding no abuse of the judge's discretion warranting reversal of his convictions or sentence, we affirm. There is, however, a clerical error in the judgment of conviction that requires a remand to correct the mistake and bring the judgment into conformity with the verdict and the record of the sentencing proceeding. The judgment of conviction reflects two convictions and sentences for manslaughter rather than one conviction and sentence for manslaughter and another for possession of a handgun without a permit.
The State's theory of the case was that on the afternoon of November 5, 2005, defendant shot and killed Jerry Jules because he had not repaid a debt. In October, defendant had told Michael Hostler that Jules owed him money for drugs he had taken from him, and on October 31, he told Ebone Stadard that he was looking for Jules because he "had taken off with some stuff." According to another witness, defendant gave Jules money when he was paroled and wanted it back.
Around noon on November 5, defendant picked up Hostler, and they rode around in a white Crown Victoria registered to defendant's mother. Malik Boynton was sitting on the porch of his mother's home with friends and saw the Crown Victoria pass the residence, which is on DeWitt Avenue in Asbury Park. Jules had been with Boynton and his friends on the porch earlier, but he left to go to a pizza place nearby.
By Hostler's account, as he and defendant were riding around, they saw Jules near the pizza place. Jules and defendant had words about money, and after their conversation defendant was upset. Defendant told Hostler that Jules was "playing" him, and he was tired of Jules saying he was going to pay.
Defendant and Hostler drove for a while and then parked in an alley near the home of Boynton's mother. Jules had returned to the porch, and defendant got out of the car, walked toward the porch and asked Jules to talk to him. When Jules came down the steps, defendant asked if he had "it" yet. Jules said he did not and would give "it" to defendant when he did. Defendant then grabbed Jules by his sweatshirt, pulled, struggled with and punched Jules.
Boynton, Kendall, James Lumsford and Frankie Williams left the porch to assist Jules. Hostler got out of defendant's car but did not join the fight. The brawl went on for several minutes. When it ended, defendant stepped back from the sidewalk into the street and pulled a gun from his waistband. Jules ran down the street, and his companions retreated to the porch. Defendant chased Jules, aimed as if he were "doing target practice" and fired multiple shots. When Jules fell to the ground, defendant turned with the gun and asked who else "wanted some."
By then Hostler was in the driver's seat of the Crown Victoria. Defendant got into the car, and they left.
In the car, defendant placed a phone call and said, "I got him." Hostler asked defendant why he had shot Jules rather than one of the men who jumped him, and defendant said he did it because Jules was the one who caused the whole thing.
Darrell Bartee, who lived in the neighborhood, passed by the porch before the shooting began and noticed a white car that looked like a police car parked in the alleyway. In his rearview mirror, he saw Jules run, heard gunshots and saw Jules fall. As he was backing up to stop and lend assistance, he saw the white car and its two occupants pass and noted that the license plate number had the letters "PEX" or "PXE." The Crown Victoria's license plate number begins with "PXE." Bartee administered CPR and later gave a written statement to the police.
In the aftermath, for reasons related to his drug business, Boynton removed drugs, money and a cell phone from Jules's person before the police arrived. He later sold the drugs. Jules died at the scene due to gunshot wounds in his back and thigh. The bullets passed through ...