NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-10-1276.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
Before Judges Grall and Simonelli.
On July 15, 2006, defendant left his home in Bushkill, Pennsylvania, purchased a .380 semi-automatic handgun at a Pennsylvania firearms and sporting goods store, and loaded it with bullets. He then drove to the Paterson, New Jersey home of his mother-in-law, Priscilla Boulware (Priscilla),  where he shot her, his sister-in-law, Vanita Wrice (Vanita), his brother-in-law, Vincent Wrice (Vincent), and a neighbor, David Thomas (David). Following the shooting, defendant went into
Priscilla's home, where he held his wife, Tatiwana Boulware-Seabrooks (Tatiwana), and their two sons, W.S. and Z.S.,  at gunpoint until eventually surrendering to the police.
The jury rejected defendant's claim of self-defense and found him guilty of two counts of first-degree attempted murder of Priscilla and Vanita, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; three counts of second-degree aggravated assault of Priscilla, Vanita and David, N.J.S.A. 2C:12-1b(1); four counts of fourth-degree aggravated assault of Priscilla, Vanita, Vincent and David, N.J.S.A. 2C:12-1b(4); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree aggravated assault of Vincent, N.J.S.A. 2C:12-1b(2); two counts of fourth-degree aggravated assault of David and Tatiwana, N.J.S.A. 2C:12-1b(3); three counts of second-degree endangering the welfare of a child, W.S., Z.S. and N.B., Tatiwana's fifteen-year-old daughter, N.J.S.A. 2C:24-4a; second-degree burglary, N.J.S.A. 2C:18-2; first-degree kidnapping of Tatiwana, N.J.S.A. 2C:13-1b(1) and/or (2); two counts of third-degree criminal restraint of W.S. and Z.S, N.J.S.A. 2C:13-2a; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. The trial judge sentenced defendant on the two first-degree attempted murder and first-degree kidnapping convictions to three consecutive fifteen-year terms of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
On appeal, defendant's assigned counsel raises the following
DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON ATTEMPTED PASSION/ PROVOCATION MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE OF ATTEMPTED MURDER AND/OR AN ALTERNATIVE VERDICT TO THE OTHER OFFENSES INVOLVING THE POSSESSION OR USE OF THE FIREARM. (Not Raised Below)
ADMISSION OF EVIDENCE THAT DEFENDANT HAD BEEN GUILTY OF FALSE SWEARING WHEN HE NAMED KOHL'S AS HIS EMPLOYER ON THE FIREARMS TRANSACTION RECORD, ALONG WITH THE PROSECUTOR'S USE OF THAT EVIDENCE IN HER SUMMATION, DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW. (Partially Raised Below)
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
In a pro se supplemental brief, defendant raises the following contentions:
THE PROSECUTOR'S CROSS-EXAMINATION OF DEFENDANT AND HER SUMMATION DEPRIVED THE DEFENDANT OF HIS SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL.
THE PROSECUTOR IMPROPERLY DENIGRATED THE DEFENDANT DURING CROSS-EXAMINATION AND IN HER SUMMATION.
THE PROSECUTOR IMPROPERLY INTERJECTED HER PERSONAL BELIEFS AND IMPROPELY VOUCHED FOR THE STATE'S WITNESSES.
THE PROSECUTOR IMPROPERLY EVOKED SYMPATHY FOR THE STATE'S WITNESS AND ALLEGED ATTEMPTED MURDER, AGGRAVATED ASSAULTS, TERRORISTIC THREATS AND KIDNAPPING VICTIMS.
MIS[S]ATED THE EVIDENCE AND ENGAGED IN IMPROPER SPECULATION.
OTHER ERRORS COMMITTED BY THE PROSECUTOR DURING SUMMATION.
THE DEFENDANT WAS DEPRIVED OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL DUE TO THE VERDICT SHEET (U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. I., PARAS. 1, 10).
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGEMENT OF ACQUITTAL REGARDING THE CHARGE OF ATTEMPT[ED] MURDER, KIDNAPPING, TERRORISTIC THREATS, WEAPONS, AND AGGRAVATED ASSAULT IN [COUNTS] 1, 2, 2A, 3, 4, 14, 15, 17, 18, 19, 24, 25, 26, 28, 29, 30, 32, 33, AND 34, THEREBY NECESSARILY TAINTING THE JURY'S VERDICT FINDING THE LESSER INCLUD[ED] OFFENSE OF [THE] ABOVE CHARGES; THE OVERCHARGE ON THE ABOVE CHARGES  RESULTED IN A [COMPROMISED] VERDICT WHICH MUST BE REVERSED; THE DEFENDANT'S DUE PROCESS RIGHT TO A FAIR ...