On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-09-0959.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Messano and Waugh.
Defendant David Starr appeals the denial of his petition for post-conviction relief. We affirm.
We discern the following procedural history and facts from the record on appeal.
In April 2005, Starr was convicted of murder, N.J.S.A.
2C:11-3(a)(1) and/or (2) (count one); felony murder, N.J.S.A. 2C:11-3(a)(3) (count two); robbery, N.J.S.A. 2C:15-1 (count three); unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count four); and possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five). On count one (murder), the judge imposed a sixty-year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The same sentence was imposed on count two (felony murder), to run concurrent to the sentence imposed on count one. The judge merged counts three (robbery) and five (possession of a firearm for an unlawful purpose) with count four (unlawful possession of a handgun) and imposed a flat, four-year sentence, to run concurrent to the sentences imposed on counts one and two.
In our opinion on Starr's direct appeal, we outlined the underlying facts as follows:
On March 14, 2003, at approximately 7:05 a.m., Officer Sean McGuire (McGuire) of the Plainfield Police Department (PPD) was dispatched to a residence on Evona Avenue based on a report that a man was bleeding from the head. McGuire entered the residence and was directed to the basement, where he observed L.J. laying on a mattress in the rear of the basement. L.J. was alive, but his heart rate was rapid and breathing labored.
McGuire immediately called for the rescue squad, which responded to the scene and attempted to perform medical treatment upon the victim. L.J. was pronounced dead at 7:43 a.m. He was fifteen years old at the time. McGuire testified that, while in the basement of the Evona Avenue residence, he observed a plastic bag containing suspected crack cocaine on an "entertainment center" that held a television.
Dr. Leonard Zaretski (Zaretski) performed an autopsy on L.J.'s body the following day. Zaretski testified that L.J. died as a result of two gunshot wounds to the head. Detective Michael Sandford of the Union County Police Department testified that the bullets removed from L.J.'s body were .32 caliber projectiles, and were fired from the same weapon. Officer Glenn Trescott (Trescott) of the PPD testified that he found .32 caliber ammunition behind an air duct in the basement of the residence. He also found a .45 caliber handgun, a 9 millimeter handgun, suspected cocaine, and twenty three bags of marijuana.
T.J. is L.J.'s mother. T.J. testified that in March 2003, she was living in the residence on Evona Avenue with L.J., her daughters S.T.J., S.I.J., and S.A.J., and another son, K.J. T.J. testified that L.J. slept in the finished basement of the house.
T.J. stated that on the morning of March 14, 2003, she asked S.I.J. to go and wake L.J. S.I.J. returned with a paper towel full of blood and said that L.J. would not wake up. T.J. went to the basement. She shook L.J. and lifted his arms. He gasped for air but did not verbally respond. T.J. called the police.
T.J. stated that [Starr] was L.J.'s cousin. [Starr] slept in her home during the evening of March 13, 2003. K.C., to whom T.J. referred as her "godbrother," also stayed in the house that night. K.C. slept in the living room on the first floor.
T.J. said that the stairway from the first floor was the only way to gain access to the basement. There was a window in the basement but the window was screwed shut. T.J. also said that there were two entrances on the first floor of the house. The front door had two locks, one of which was a dead bolt lock. The back door had similar locks. In addition, T.J. had a dog that was free to roam around the house. According to T.J., the dog did not take "kindly" to strangers.
T.J. testified that on the night before
L.J. was killed, she heard [Starr] ask L.J. if he could wear one of his outfits. L.J. refused. T.J. said that L.J. owned a brown sweat suit. L.J. also owned diamond earrings. In addition, he had a long chain and medallion with diamonds. T.J. additionally testified that on the morning of March 14, 2003, she heard gunshots at around 6:30 a.m. T.J. said that she was awake at the time, sitting on her bed, watching the news on television.
L.J.'s sister S.I.J. testified that on March 13, 2003, [Starr] was staying in
L.J.'s room in the basement of the house. Sometime during the day, S.I.J. went down to the basement. L.J. had gone out and [Starr] was there with S.I.J.'s other brother, K.J. S.I.J. saw K.J. reach under a pillow on a couch and pull out a gun. She also observed [Starr] walk over to L.J.'s cabinet, pull out a "little gun" and point it at K.J. S.I.J. went upstairs to the second floor and, at some point, went to sleep.
S.I.J. testified that the following morning, she awoke around 6:00 a.m. and heard sounds "like a firecracker." S.I.R. [sic] heard two sounds, minutes apart. She said that the sounds were coming from beneath her. S.I.J. observed [Starr] coming up the stairs. [Starr] gave S.I.J. a "high-five" and he ...