On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-04-1407.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
Before Judges Fisher, Alvarez and St. John.
A Camden County Grand Jury returned a multi-count indictment charging defendant Earl T. Moore with various offenses against the victim, Dewey Marshall. Following a jury trial, defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4a, the lesser-included offense of the charged first-degree murder, N.J.S.A. 2C:11-3a(1)(2); first-degree felony murder, N.J.S.A. 2C:11-3a(3) (robbery or burglary); first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2b(1) or (2); second-degree conspiracy to commit armed robbery/burglary, N.J.S.A. 2C:5-2/ 2C:18-2b(1) or (2); second-degree possession of a weapon for an unlawful purpose (firearm), N.J.S.A. 2C:39-4a; and third-degree unlawful possession of a weapon (firearm), N.J.S.A. 2C:39-5b. After a separate trial before the same jury, defendant was convicted of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.
Following appropriate mergers, the judge imposed a sentence of life imprisonment on count two, the felony murder charge, subject to a period of eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge sentenced defendant to ten years imprisonment, with five years parole ineligibility on the second-degree conspiracy to commit armed robbery/burglary and five years imprisonment, with two-and-one-half years parole ineligibility on the third-degree unlawful possession of a weapon. These sentences were to be served concurrently with each other and with the terms imposed on the felony murder and the certain persons convictions. On the second-degree certain persons not to have weapons conviction, the judge sentenced defendant to a term of ten years imprisonment, with five years parole ineligibility, to be served consecutively to the felony murder conviction and concurrently to the terms imposed on the conspiracy and unlawful possession of a weapon convictions. Appropriate fines and penalties were imposed.
We briefly summarize the procedural history and the facts based on the evidence presented at trial and pretrial proceedings. Before the trial commenced, the trial judge granted the State's application to admit certain evidence, specifically defendant's prior history of gang involvement as motive for the homicide. N.J.R.E. 404(b). The judge also determined that defendant's prior convictions would be admissible for impeachment purposes in the event defendant testified. N.J.R.E. 609.
On the night of August 29, 2005, defendant, Lawrence Willis and Corey Manderville, were driving around Camden in a rented red colored Pontiac Grand Prix, when they decided that they wanted to find someone to rob. At the time, Willis was armed with a .25 caliber semi-automatic handgun, and defendant was armed with a .380 semi-automatic handgun. They eventually decided to rob Dewey Marshall, who Willis knew sold drugs.
Because Marshall knew both Willis and Manderville, they decided that defendant would call Michael Coombs to assist with the robbery. They then picked up Coombs. Coombs and defendant were both in the same set of the Blood's Street gang. Defendant had a higher rank than Coombs, and Coombs was required to follow his orders. The four proceeded to the Tamarack apartments where defendant was known to stay with his girlfriend, Neidtikka Morris. Defendant was dressed in camouflage thermal. Willis and defendant were lieutenants of equal rank in different sets or factions of the Bloods Street gang. Willis gave his .25 caliber handgun to Coombs.
At some point while they were parked in the lot at the apartment, both Willis and Manderville wanted to abandon the robbery plan. However, defendant encouraged the group to finish the job. After they grew tired of waiting for Marshall to exit the apartment, defendant and Coombs exited the car and went to Morris's apartment. Upon reaching the apartment, defendant knocked on the door as Coombs stood beside him with his gun in his back pocket. Marshall answered the door and defendant pulled his gun from his pocket. Defendant tried to force his way inside the apartment and broke the hinges off the door. Marshall ran out of the apartment at which point defendant fired one shot at him, which missed. Marshall jumped off the front steps of the building with his head down, falling to the ground in a fetal position as defendant's second shot hit and killed him.
Coombs and defendant then ran off. Morris saw a man running from the scene wearing camouflage. A neighbor, Jason Lane, saw two individuals exit the car, heard two shots, saw the same parties then enter the car, which pulled away.
A surveillance camera captured the exterior events. The ballistics report indicated that two discharged automatic .380 bullet shell casings and a bullet were recovered at the scene. There was also a bullet recovered from Marshall's head. The two bullets were discharged from the same firearm and both bullets were "most consistent with bullets utilized in a .380 auto caliber cartridge." At trial, both Coombs and Willis testified for the State.
On appeal, defendant raises the following issues for our consideration:
A FAIR AND IMPARTIAL TRIAL WAS DENIED TO DEFENDANT BECAUSE THE STATE WITNESS MORRIS ANNOUNCED BEFORE THE JURY THAT DEFENDANT WAS STARING AT HER AND THAT HER LIFE WAS IN DANGER, AND THE TRIAL COURT FAILED TO ISSUE CURATIVE INSTRUCTIONS TO THE JURY AND PRESERVE DEFENDANT'S RIGHT TO FULLY CROSS-EXAMINE THE WITNESS (PLAIN ERROR).
REFERENCES BEFORE THE JURY TO DEFENDANT'S TAKING OF LIE-DETECTOR AND VOICE STRESS ANALYZER TESTS WAS UNFAIRLY PREJUDICIAL (PLAIN ERROR).
THE TRIAL COURT AND PROSECUTOR INTERFERED WITH DEFENDANT'S RIGHT TO CALL A WITNESS TO TESTIFY ON HIS BEHALF AT TRIAL (PLAIN ERROR).
REFERENCES TO DEFENDANT'S MEMBERSHIP IN THE BLOODS GANG VIOLATED N.J.R.E. 404(B) AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
THE FAILURE TO GIVE AN INITIAL ACCOMPLICE LIABILITY CHARGE TO THE JURY, COMBINED WITH THE PROSECUTOR'S STATEMENTS DURING SUMMATION DISTORTING THE ACCOMPLICE AND CO-CONSPIRATOR PRINCIPLES, CAUSED AN UNFAIR TRIAL (PLAIN ERROR).
JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN ENTERED ON THE ARMED ROBERY CHARGE, RENDERING DEFENDANT'S CONVICTIONS FOR ROBBERY AND THE FELONY MURDER CHARGE HINGING ON IT INVALID (PLAIN ERROR).
THE FELONY MURDER CHARGE WAS IMPROPER, WARRANTING VACATION OF DEFENDANT'S FELONY MURDER ...