On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-11-2591.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Simonelli and Hayden.
In connection with the shooting death of his live-in girlfriend's son, Duwuan Potter, and the non-fatal shootings of the girlfriend, Dawn Potter, and an innocent bystander, George Williams, defendant Theodore Gordon Harris was convicted of these offenses: first-degree murder of Duwuan Potter, N.J.S.A. 2C:11-3 (count one); first-degree attempted murder of Dawn Potter, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count two); third-degree aggravated assault with a deadly weapon on George Williams, N.J.S.A. 2C:12-1b(2) (count three); third-degree aggravated assault by pointing a firearm at a law enforcement officer, Lorenzo Pettway, N.J.S.A. 2C:12-1b(9) (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (counts five and nine); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count six); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count seven); second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5b(2) (count eight); second-degree possession of a firearm in the course of committing a drug offense, N.J.S.A. 2C:39-4.1a (count ten); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1) (counts eleven and twelve).
Defendant was sentenced to a thirty-year term for murder, all to be served without parole; for attempted murder, a consecutive twenty-year sentence, eighty-five percent to be served without parole under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; and two consecutive flat sentences of five years on the weapons-related offenses in counts three and ten. The remaining sentences were concurrent.*fn1
Defendant appeals from the conviction and the sentence, presenting the following points of argument for our consideration:
POINT I: THE PROSECUTOR'S CROSS-EXAMINATION AND COMMENTS REGARDING DEFENDANT'S DELAY IN CLAIMING SELF-DEFENSE WAS GROSSLY IMPROPER AND DENIED DEFENDANT A FAIR TRIAL.
POINT II: IT WAS ERROR FOR THE COURT TO REFUSE TO PERMIT ADMISSION OF CERTAIN STATEMENTS MADE BY DEFENDANT TO THE POLICE FOLLOWING HIS ARREST.
POINT III: SINCE NEITHER DEFENDANT NOR THE CO-OCCUPANT OF THE MOTEL ROOM WERE PROPERLY INFORMED OF THEIR RIGHT TO REFUSE TO CONSENT TO A SEARCH THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.
POINT IV: THE TESTIMONY OF SGT. MEANY THAT DEFENDANT WAS NOT REMORSEFUL WAS IMPROPER EVIDENCE THAT DEPRIVED DEFENDANT [OF] A FAIR TRIAL. (Not Raised Below.)
POINT V: CERTAIN CONDUCT AND STATEMENTS BY THE PROSECUTOR CONSTITUTED PROSECUTORIAL MISCONDUCT WHICH DENIED DEFENDANT A FAIR TRIAL.
POINT VI: THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND HIS FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS BY THE TRIAL COURT'S PRECLUDING THE ADMISSION OF CERTAIN EVIDENCE.
POINT VII: THE ADMISSION OF THE VHS TAPE AND TRANSCRIPT OF DEFENDANT'S STATEMENT TO THE POLICE IN THE STATE'S REBUTTAL CASE WAS ERROR.
POINT VIII: THE AGGREGATE SENTENCE IMPOSED UPON DEFENDANT OF 60 YEARS WITH 30 YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not Raised Below.)
POINT IX: THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below.)
In a supplemental pro se brief, defendant offers additional contentions "expanding the arguments made on Points III and IX" in his attorney's brief.
The State cross-appeals from the trial court's failure to impose what it contends are mandatory three-year periods of parole ineligibility under N.J.S.A. 2C:43-6c (the Graves Act), on counts three, four and ten. The trial court had imposed flat five-year sentences for each of those counts. Defendant did not oppose the State's cross-appeal.
Having reviewed the entire record presented to us, including all of the transcripts, we affirm the conviction. We also affirm the sentence, except for counts three, four, and ten, as to which we agree with the State's cross-appeal. We therefore remand this matter to the trial court for re-sentencing. We express no view as to whether, on remand, the court should re-impose the original sentence, plus six additional consecutive years of parole ineligibility and one concurrent three-year parole bar, or whether the ...