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State of New Jersey v. David Russo

June 8, 2011

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DAVID RUSSO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 86-10-00575.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2011

Before Judges Yannotti and Skillman.

Defendant David Russo appeals from an order entered by the Law Division on June 26, 2009, denying his petition for post-conviction relief (PCR). We affirm.

I.

Defendant was tried before a jury and found guilty of purposeful and knowing murder, N.J.S.A. 2C:11-3(a)(1); capital murder, N.J.S.A. 2C:11-3(a)(2); felony murder, N.J.S.A. 2C:11-3(a)(3); armed robbery, N.J.S.A. 2C:15-1; two counts of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); and two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1). The trial court imposed an aggregate sentence of life plus forty years, with fifty years of parole ineligibility. A judgment of conviction was entered on June 22, 1987.

Defendant appealed and raised the following arguments:

I. THE COURT DENIED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL IN CONDUCTING A RULE 8 HEARING ON THE ISSUES OF DIMINISHED CAPACITY IN WHICH HE REQUIRED THE DEFENSE TO CONVINCE THE COURT BY A PREPONDERANCE OF THE EVIDENCE THAT THE CONDITION EXISTED OR THAT IT NEGATED AN ESSENTIAL ELEMENT OF THE OFFENSE.

II. THE COURT SHOULD HAVE CHARGED THE LESSER INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER.

III. THE COURT'S CHARGE ON THE DEFENSE OF INTOXICATION WAS IMPROPER AND MISLEADING DENYING THE DEFENDANT A FAIR TRIAL.

IV. THE COURT DENIED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO REPRESENT HIMSELF AT TRIAL.

V. THE DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL WERE VIOLATED.

VI. THE PROSECUTOR'S CONDUCT DURING THE TRIAL WAS GROSSLY IMPROPER WARRANTING A NEW TRIAL.

VII. THE TRIAL COURT, BY CERTAIN OF ITS RULINGS, INDICATED A BIAS AGAINST THE DEFENSE, AND DENIED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.

VIII. THE DEATH QUALIFICATION OF THE JURY IN THE CASE SUB JUDICE RESULTED IN A JURY WITH A DISPROPORTIONATE UNDER-REPRESENTATION OF BLACKS AND WOMEN.

IX. THE COURT FAILED TO EXCUSE FOR CAUSE A NUMBER OF JURORS DURING VOIR DIRE.

X. THE COURT'S VOIR DIRE OF PROSPECTIVE JURORS WHO WERE IN FAVOR OF THE DEATH PENALTY WAS INADEQUATE IN THAT IT FAILED TO IDENTIFY JURORS WHOSE VIEWS IN FAVOR OF THE DEATH PENALTY WOULD SUBSTANTIALLY IMPAIR THEIR ABILITY TO GIVE A DEFENDANT A FAIR TRIAL.

XI. THE COURT ABUSED ITS DISCRETION IN ALLOWING THE JURY TO VIEW A 31 MINUTE VIDEOTAPE OF THE CRIME SCENE WHICH DEPICTED THE VICTIMS IN A GRUESOME AND SHOCKING WAY.

XII. THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE UNDER THE CIRCUMSTANCES.

XII. THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE UNDER THE CIRCUMSTANCES.

In a published opinion, we affirmed defendant's convictions, but held that his convictions for aggravated assault should have been merged with his convictions for attempted murder. State v. Russo, 243 N.J. Super. 383, 411 (App. Div. 1990). Consequently, we held that defendant's aggregate sentence must be reduced to life plus twenty years, with a forty-year period of parole ineligibility. Id. at 412-13. The Supreme Court denied defendant's petition for certification. State v. Russo, 126 N.J. 322 (1991).

In June 1992, defendant filed a pro se petition for PCR, in which he raised the following grounds for relief:

Ground 1: In conducting a Rule 8 Hearing on the issue of Diminished Capacity, the Court denied petitioner his 6th Amendment constitutional right to a fair trial by requiring the defense to convince the Court by a preponderance of the evidence that the condition existed or that it negated an essential element of the offense.

Ground 2: The trial court committed reversible error in refusing to charge the jury with the lesser included offenses of aggravated manslaughter and resulted in violation of ...


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