On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-08-2591.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2012 -
Before Judges Simonelli, Koblitz and Lisa.
Defendant Frank E. Moore appeals from a judgment of conviction entered on July 9, 2010. His first trial resulted in a mistrial after the shooting victim testified to a threatening phone call she received from defendant a few months after the incident. Neither the prosecution nor defense was aware of this phone call. Defendant requested a mistrial, which the State opposed. The State immediately investigated the matter and discovered the pertinent Winslow Township Police Department report, which had not been shared with the prosecution. The court granted defendant's renewed request for a mistrial the following day. Defendant was then retried and convicted. On appeal he argues that the retrial violated his double jeopardy protections. U.S. Const. amend. V; N.J. Const. art. I, ¶ 11. He also maintains that the forced entry into his home to arrest him was improper, the prosecutor's summation violated his right to remain silent and his sentence is excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On August 20, 2008, a Camden County Indictment No. 08-08-2591 was filed, charging defendant with: first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a handgun by certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count five). Defendant was found not guilty of count one, the jury was deadlocked on count two (which the prosecutor then dismissed) and he was found guilty of counts three, four and five. He was given an aggregate sentence of twenty years in prison with an eleven-year period of parole ineligibility.
The trial testimony revealed the following facts. On Friday, March 21, 2008, Shaquanna Wright went out to celebrate her birthday with her friend and neighbor, Danielle Orlando. Although Orlando was married, she had been having an affair with defendant and invited him to accompany the women that night. The two women picked defendant up at his mother's home.
Defendant asked Orlando for her car keys, stating that he needed to take care of something. The two women went inside a bar, began drinking and then dancing provocatively. Wright noticed defendant standing at the back of the bar, staring at them. Orlando went to speak with defendant, who indicated he wanted to leave. Although they did not want to go, the women ultimately agreed to leave the bar with defendant.
Orlando and defendant argued before entering the vehicle and exiting the parking lot. Orlando drove, while defendant sat in the passenger seat and Wright sat in the back seat. The arguing continued until defendant punched Orlando in the face.
Wright "exploded" and began to shout at defendant. Orlando stopped the car near the home of defendant's cousin. Orlando stumbled as she climbed out of the car. Wright tended to Orlando and helped her from the ground, all the while shouting at defendant.
As Wright continued shouting, defendant walked around the front of the car to the driver's side, opened the trunk, and walked to the back of the vehicle. Orlando and Wright testified to hearing defendant say the word "bitch," after which he shot Wright with a gun. The bullet grazed the left side of Wright's head. Wright collapsed into the back passenger seat, such that her body was halfway out of the car. Orlando then pushed Wright's body into the car and drove her to the emergency room at Cooper Hospital.
Shortly after 1:00 a.m., New Jersey State Police Detective Sergeant Marco Rodriguez responded to Cooper Hospital on the report of a gunshot victim. Upon arriving at the hospital, the detective noticed a black Chevy Malibu parked in the driveway, directly in front of the emergency room doors, with what appeared to be blood stains in the vehicle's back seat.
Det. Rodriguez spoke with Orlando, who appeared distraught, nervous and intoxicated. Orlando consented to a search of her car. Upon closer inspection, police discovered blood stains in the back behind the driver's seat, on the rear passenger window, on the rear passenger door and on the floorboard.
Det. Rodriguez then questioned Orlando about the incident. Orlando initially told police a false story, covering for defendant.
Orlando later picked defendant up at his cousin's house and they went to a rented motel room, where they remained until approximately 10:30 a.m. Later that night, Orlando contacted Det. Rodriguez to whom she had given her initial, false statement. She informed the detective that defendant shot Wright. She said she initially lied to police out of concern that her husband would learn of the affair and because she feared defendant.
An investigation of defendant's criminal history revealed his most recent address as his mother's residence in Lindenwold. Orlando agreed to assist in apprehending defendant. She called defendant and arranged to go to the beach with him. During their conversation, defendant stated that he was at his mother's residence. Orlando was on the ...