On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-1973.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2011
Before Judges Messano and Kennedy.
Following a jury trial, defendant Tiquan Whitehurst was convicted of the first-degree purposeful or knowing murders of Joseph Cox and Charles Jackson, N.J.S.A. 2C:11-3(a)(1) and (2) (Counts One and Two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (Count Three); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Four). Prior to sentencing, the State moved for imposition of an extended term pursuant to N.J.S.A. 2C:43-6(c) and N.J.S.A. 2C:44-3(d) (the Graves Act).
For the murders, the judge sentenced defendant to two consecutive life terms, each subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On Count Three, the judge sentenced defendant to a term of five years, concurrent with the sentences imposed on Counts One and Two; he merged the conviction on Count Four with Counts One and Two.
Although the State argued for the imposition of extended terms and mandatory minimum terms pursuant to the Graves Act, the judge did not address the State's motion and the sentences imposed were not subject to the Graves Act.
On appeal, defendant raises the following arguments:
THE TRIAL COURT'S ADMISSION OF TESTIMONIAL HEARSAY STATEMENTS, IN THE FORM OF DYING DECLARATIONS IN RESPONSE TO POLICE QUESTIONS, VIOLATED DEFENDANT'S RIGHT TO CONFRONT WITNESSES AND HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not raised below)
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant contends:
DEFENDANT WAS DENIED HIS RIGHT TO AN IMPARTIAL JURY IN VIOLATION OF THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PAR 10 OF THE NEW JERSEY CONSTITUTION. (Partially raised below)
THE PROSECUTOR'S COMMENTS DURING HER OPENING AND CLOSING SUMMATION WERE IMPROPER AND DEPRIVED DEFENDANT OF HIS RIGHT'S [SIC] TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART I, PARS. 1, 9, AND 10. (Not raised below)
The State raises the following issue on cross-appeal:
IN ADDITION TO THE NERA SENTENCES IMPOSED ON COUNTS ONE AND TWO, THE TRIAL COURT WAS REQUIRED TO IMPOSE MANDATORY GRAVES ACT SENTENCES ON THOSE COUNTS AS WELL BECAUSE DEFENDANT IS EXTENDED TERM ELIGIBLE AS A SECOND OFFENDER WITH A FIREARM.
We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction and sentence. We also grant the State's cross-appeal and remand the matter to ...