NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-04-1146.
Joseph E. Krakora, Public Defender, attorney for appellant (William B. Smith, Assistant Deputy Public Defender, of counsel and on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
Before Judges Parrillo, Harris, and Guadagno.
Tried to a jury, defendant Eric Lunsford was convicted of aggravated manslaughter, aggravated assault, assault with a firearm, and related weapons charges in connection with an armed home-invasion that left one occupant dead and another partially paralyzed. Defendant was sentenced to twenty-five years on the aggravated manslaughter charge, and a consecutive ten-year sentence on the aggravated assault charge. He challenges his conviction and sentence by raising the following points:
DEFENSE COUNSEL WAS INEFFECTIVE, UNDER BOTH STATE AND FEDERAL CONSTITUTIONAL STANDARDS, IN NOT MOVING TO SUPPRESS THE IN-COURT AND OUT-OF-COURT IDENTIFICATIONS OF HIS CLIENT BY THE WITNESS DERRICK KEITT. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN ADMITTING TESTIMONY REGARDING THE WITNESS KEITT'S PHOTOGRAPHIC IDENTIFICATION OF DEFENDANT AND HIS IN-COURT IDENTIFICATION OF DEFENDANT. (NOT RAISED BELOW).
THE PROSECUTOR WAS GUILTY OF MISCONDUCT BY SUGGESTING, DURING THE COURSE OF THE TRIAL, THAT THE WITNESS STEPHENSON WAS IN DANGER BECAUSE OF HIS TESTIMONY, BY GOING INTO HIGHLY PREJUDICIAL DETAIL AS TO THE EFFECTS HIS WOUNDS HAD HAD UPON HIM AND ENGAGING IN OTHER IMPROPER ARGUMENT. (PARTIALLY RAISED BELOW).
REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS AND THE INEFFECTIVENESS SET FORTH IN POINTS I THROUGH III, SUPRA.
THE TRIAL JUDGE ERRONEOUSLY IMPOSED CONSECUTIVE SENTENCES UPON DEFENDANT.
We have considered these arguments in light of the record and applicable legal standards, and we affirm.
We glean the following facts from the record. At the time of this incident, Jeffrey King and Everett Stephenson lived in the second-floor apartment of a three-unit building in Newark. Derrick Keitt lived on the first floor.
On August 16, 2008, at around 6:30 p.m., Keitt heard banging on his door. He looked through the peephole but did not recognize the two men at his door. Keitt ran out the back door and up the stairs to the second-floor apartment where King and Stephenson were.
King retrieved a gun from the back room and all three men went downstairs. At the bottom of the stairs, they noticed the front door had been kicked in. King noticed a man standing on the front porch and pointed his gun at him. When Stephenson and King observed a gun in the man's waistband they retrieved it after a brief struggle. Stephenson then hit the man on the top of his head with the gun. As Stephenson was about to hit the man again, he was shot in the back. A ...