On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-08-0789.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2011 -
Before Judges Payne, Simonelli and Hayden.
A grand jury indicted defendant Jerome Farnville for two counts of first-degree felony murder, N.J.S.A. 2C:11-3a(3) (counts one and two);*fn1 first-degree robbery, N.J.S.A. 2C:15-1a(1) and (2) (count three); second-degree robbery, N.J.S.A. 2C:15-1a(1) and (2) (count four); second-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2 (count five); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4.1a (count six); third-degree unlawful acquisition of a firearm, N.J.S.A. 2C:39-10 (count seven); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2a(1) and N.J.S.A. 2C:15-1 (count ten); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2a(1) and N.J.S.A. 2C:18-2 (count eleven); and third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b (count twelve).
Following a jury trial, defendant was convicted on count one of first-degree felony murder, on count three of first-degree armed robbery, on count four of second-degree robbery, on count seven of third-degree unlawful acquisition of a firearm, and on counts ten and eleven of second-degree conspiracy to commit robbery and burglary. In convicting defendant on count three the jury did not find beyond a reasonable doubt that he was armed with a shotgun. The jury also found defendant not guilty on count six of possession of a shotgun for an unlawful purpose, and on count twelve of possession of a sawed-off shotgun. At sentencing, the trial judge merged the convictions on counts four and ten with count one and sentenced defendant to an aggregate sixty-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
On appeal, defendant raises the following contentions:
THE TRIAL COURT ERRED, TO DEFENDANT'S GREAT PREJUDICE, IN REFUSING TO ADMIT AN EXCITED UTTERANCE THAT A CO-DEFENDANT WAS THE SHOOTER. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
THE STATE ENGAGED IN MISCONDUCT BY INTENTIONALLY PRESENTING HIGHLY PREJUDICIAL VICTIM-IMPACT TESTIMONY, AND THE TRIAL COURT FAILED TO ATTEMPT TO REMEDIATE IT, TO DEFENDANT'S GREAT PREJUDICE. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
THE OFFICERS VIOLATED THE DEFENDANT'S RIGHT TO SILENCE AND TO COUNSEL BY CONTINUING TO QUESTION HIM AFTER HE HAD REQUESTED COUNSEL, NECESSITATING SUPPRESSION. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
In a pro se supplemental brief, defendant raises the following contention:
THE TRIAL COURT COMMITTED PLAIN ERROR FOR NOT HAVE TAKEN JUDIC[I]AL NOTICE THEREBY DEPRIVING APPELLANT OF DUE-PROCESS-OF-LAW, U.S. CONST. A[MENDS]. 6, 14; N.J. CONST. (1947), ART. 1, PAR. 10. (NOT RAISED BELOW)
We reverse defendant's first-degree robbery conviction, remand for the entry of an amended judgment of conviction to remove that conviction, and affirm in all other respects.
On September 12, 2005, Hamilton Blackshear (Blackshear) was shot and killed outside of the home of his son, Albert Blackshear (Albert). Prior to the shooting, Albert had been involved in several disputes with Kenneth Bartee (Bartee) about a purported sexual relationship between Albert and Bartee's girlfriend, which culminated in a physical altercation between the two at a party on September 10, 2005. In retaliation, Albert set fire to Bartee's grandmother's house, where Bartee had been living.
On September 12, 2005, Bartee broke into Albert's house and stole his clothing, electronics, and other valuables. Later that evening, Blackshear accompanied Albert to the house to retrieve Albert's remaining property, and change the locks. After Blackshear exited the house, Albert heard "a loud noise like a bang." Blackshear ran back into the house, told Albert he had been shot, and fell to the floor in the living room. Albert called 9-1-1. Blackshear later died from his gunshot wounds.
Detective Rick Pierce of the Bridgeton Police Department responded to the scene of the shooting. Albert told the detective that he had recently been involved in a fight with Bartee at a party, and gave him the names of possible suspects. Detective Pierce narrowed the suspects to defendant, Bartee, Andrew Swinton (Swinton), William Rothmaller (Rothmaller, a/k/a Pop Tart), Archie Perry (Perry), Charles Clark (Clark), and Brian Baldwin (Baldwin).
In a taped statement Clark gave the police on September 27, 2005, he said that he, Bartee, Perry, Baldwin, and Hector Ruiz drove to Albert's house in Perry's van because Bartee wanted to fight Albert. They met defendant, Swinton, and Rothmaller on the way. The men arrived at Albert's house and exited their respective vehicles. As they were walking toward the house, Clark saw that both defendant and Swinton had sawed-off shotguns. When Clark reached the bushes by the side of the house, he saw a man exit the back door, and then heard a gunshot. He did not see who had fired that shot, but said "it was between [Swinton] and [defendant]." Clark saw defendant fire a second shot. After the second shot, Clark and Bartee ran back to Perry's van and left the area. Clark did not know that someone had been killed until he read about it in the newspaper the next day. Swinton threatened to shoot anyone and their family who talked about the shooting, and stated that he was going to shoot Perry and Perry's father because they had already gone to the police.
In a taped statement Perry gave to the police on September 30, 2005, he said that on September 12, 2005, he was at Baldwin's house when Bartee asked Perry to give him a ride to Albert's house so that Bartee could steal Albert's dog. Clark, Baldwin, and Ruiz joined them. As the five men were leaving Baldwin's house in Perry's van, Bartee received a call from Swinton. The men eventually met up with ...