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State of New Jersey v. James L. Calhoun

July 29, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES L. CALHOUN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-05-0707.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 16, 2011

Before Judges R. B. Coleman and Lihotz.

Defendant James Calhoun appeals from a November 14, 2008 final judgment of conviction entered following a jury trial on charges of kidnapping, robbery, carjacking, and aggravated sexual assault. He also challenges, as excessive, his aggregate thirty-year sentence, subject to the eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant argues:

POINT I

THE COURT DID NOT PROPERLY ADDRESS THE JURY FOREPERSON'S OBJECTION THAT WAS VOICED WHEN THE COURT RESPONDED TO A REPORTED DEADLOCK IN DELIBERATIONS BY GIVING THE INSTRUCTION FROM STATE V. CZACHOR WHICH URGES FURTHER JURY DELIBERATIONS; HENCE, WHILE INITIALLY GIVING THE CZACHOR INSTRUCTION MAY NOT HAVE BEEN ERROR, THE COURT'S REFUSAL TO DISCUSS THE MATTER FURTHER WITH THE FOREPERSON AND THE JURY ONCE AN OBJECTION WAS LODGED HAD THE SAME COERCIVE EFFECT THAT THE INSTRUCTION IS MEANT TO AVOID, AND REVERSAL IS REQUIRED.

POINT II

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

In a supplemental pro se brief, defendant adds these issues:

POINT I

DEFENDANT'S CONVICTION WAS SECURED IN VIOLATION OF HIS STATE, AND FEDERAL CONSTITUTIONAL RIGHTS, BECAUSE UNDER THE NEW JERSEY SUPREME COURT'S HOLDING IN STATE V. A.G.D., 178 N.J. 56 (2003), DEFENDANT CALHOUN'S WAIVER OF HIS STATE-LAW RIGHT AGAINST SELF-INCRIMINATION ON OCTOBER 14, 2004, WAS NOT KNOWING, INTELLIGENT AND VOLUNTARY PER SE, BECAUSE THE POLICE FAILED TO INFORM HIM THAT AN ARREST WARRANT HAD BEEN FILED OR ISSUED AGAINST HIM, AND HE DID NOT OTHERWISE KNOW THAT FACT. AS A RESULT, DEFENDANT CALHOUN'S INCRIMINATING STATEMENTS FROM OCTOBER 14, 2004, SHOULD BE SUPPRESSED, AND HIS CONVICTION REVERSED. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶1, 9, 10. (raised below)

POINT II

THE STATE FAILED TO SUSTAIN ITS BURDEN OF PROOF THAT THE DEFENDANT'S WAIVER OF RIGHTS WAS KNOWING AND VOLUNTARY, AND THE TRIAL JUDGE'S FINDINGS WERE INSUFFICIENT TO SUPPORT ITS DECISION. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶1, 9, 10. (raised below)

POINT III

THE TRIAL JUDGE'S FAILURE TO PROVIDE A PROPER CORROBORATION CHARGE VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ...


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