NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued (A-1467-10T2) and Submitted (A-1731-10T2) April 10, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-02-0168.
Alan Dexter Bowman argued the cause for appellant Charles Richardson.
Marc A. Festa, Senior Assistant Prosecutor, argued the cause for respondent in A-1467-10 (Camelia M. Valdes, Passaic County Prosecutor, attorney; Mr. Festa, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Kenneth Boddie (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent in A-1731-10 (Marc A. Festa, Senior Assistant County Prosecutor, of counsel and on the brief).
Before Judges Simonelli, Koblitz and Accurso.
A grand jury indicted defendants Charles Richardson (Richardson) and Kenneth Boddie (Boddie) for first-degree murder, N.J.S.A. 2C:11-3a(1) and (2); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5b; and first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2a. The charges stemmed from the shooting death of Kasiem Benton (Benton). In a joint trial, it was the State's theory that Richardson was the shooter and Boddie a co-conspirator.
A jury found Richardson guilty of murder and the related weapons offenses, and not guilty of conspiracy to commit murder. The same jury found Boddie guilty of first-degree aggravated manslaughter, a lesser-included offense of murder, N.J.S.A. 2C:11-4a, and the related weapons offenses, and not guilty of conspiracy to commit murder. The trial judge denied both defendants' motions for judgment notwithstanding the verdict (j.n.o.v.).
The judge sentenced Richardson on the murder conviction to a fifty-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. The judge merged Boddie's possession of a handgun for an unlawful purpose conviction with the aggravated manslaughter conviction and sentenced him on the aggravated manslaughter conviction to a seventeen-year term of imprisonment subject to NERA. The judge also imposed a concurrent five-year term of imprisonment on Boddie's possession of a handgun without a permit conviction.
On appeal, Richardson raises the following contentions:
Point I – The Trial Court Erred In Failing To Instruct The Jury As To The Defense Of Self-Defense In Relation To Each Of The Offenses In The Indictment And As To Passion/Provocation Manslaughter (Not Raised Below).
i. The Defense of Self Protection.
a. Application to Non-Possessory Offenses.
ii. General [Law] As To Jury Instruction.
iii. This Court Must Reverse.
Point II – The Trial [Court] Committed Plain Error In Its Admission And Management Of Other Crimes Evidence In Lieu Of Ordering A Mistrial (Partially Raised Below).
A. Pertinent Law.
1. Other Crimes Evidence.
2. The Law As to Mistrial.
B. Appellant Was Clearly Denied a Fair Trial.
1.CDS As Currency For Car Rental.
2.Testimony as to an FBI Informant.
Point III The Prosecutor's Comments In Summation Denied Appellant A Fair Trial ([P]artially Raised Below).
i. The Misconduct.
ii. The Law.
On appeal, Boddie raises the following contentions:
BECAUSE THE STATE TRIED THE CASE AGAINST THE DEFENDANT SOLELY ON A THEORY OF CONSPIRATOR LIABILITY, AND THE JURY WAS NOT INSTRUCTED AS TO ACCOMPLICE LIABILITY, THE CO[N]VICTION OF AGGRAVATED MANSLAUGHTER CANNOT STAND IN LIGHT OF THE DEFENDANT'S ACQUITTAL OF CONSPIRACY. U.S. CONST., AMENDS. V, XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10.
A. The Homicide Conviction Cannot Stand Because It Lacks the Necessary Predicate of a Finding of Conspiracy.
B. The Defendant Cannot Be Convicted As An Accomplice Because the Jury Was Never Instructed As To That Theory.
C. Double-Jeopardy Principles Bar Re-Prosecution for Homicide, Necessitating Dismissal of the Murder Charge.
TESTIMONY THAT THE POLICE HAD RECEIVED A TIP FROM AN FBI INFORMANT CONSTITUTED A CLEAR VIOLATION OF STATE V. BANKSTON, AND THE COURT'S CURATIVE CHARGE COULD NOT HAVE BEEN SUFFICIENT TO REMEDIATE THE PREJUDICE, NECESSITATING REVERSAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 9.
THE CONVICTION WAS CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PARS. 9, 10.
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, ...