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State v. Howard

Superior Court of New Jersey, Appellate Division

November 20, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
DAVID HOWARD, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 29, 2013

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-12-1274 and 03-12-1275.

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Travis H. Carter, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.

Before Judges Graves and Guadagno.

OPINION

GRAVES, J.A.D.

Defendant David Howard appeals from an April 28, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

Following a trial, a jury convicted defendant of murder for purposefully or knowingly causing the death of Anthony Baker, N.J.S.A. 2C:11-3(a)(1) or (2) (count one); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count two); and second-degree possession of the same handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three). In a separate trial before the same jury, [1] defendant was convicted of second-degree possession of a handgun by a prohibited person, N.J.S.A. 2C:39-7(b)(1).

At sentencing on March 4, 2005, defendant thanked his attorney "for the hard work that she put in the case." In addition, the trial court described the manner in which the shooting occurred as follows:

Now in this particular case the victim, Anthony Baker, had walked across the street and told the defendant that he had to leave the area. . . . As a result, the defendant Howard did leave the area, but he returned to the area with a gun. After a period of time the defendant Howard walked across the street, and as he walked past Anthony Baker, he said something to the victim.
. . . As the victim turned around to talk to him, [defendant] shot him point blank in the chest. This was an execution. Although the victim Anthony Baker may have been involved in some improper behavior with respect to drugs at the time, the defendant executed the victim in cold blood.

The court sentenced defendant to a fifty-year prison term with forty-two-and-one-half years of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant's other convictions were either merged with count one or the court imposed concurrent sentences.

On direct appeal, defendant presented the following arguments through counsel:

POINT I
THE JURY INSTRUCTIONS WERE FATALLY FLAWED IN TWO RESPECTS: (1) FAILING TO CHARGE CAUSATION WHEN THE EVIDENCE INDICATED THAT A RELATIVE OF THE VICTIM, NOT DEFENDANT, MAY HAVE FIRED THE FATAL SHOT, AND (2) FAILING TO INSTRUCT THE JURY ON THE CLEARLY INDICATED LESSER-INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER. (Not Raised Below.)
A. CAUSATION.
B. PASSION/PROVOCATION ...

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