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State v. Harris

Superior Court of New Jersey, Appellate Division

November 15, 2018

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JAMES HARRIS, a/k/a JAMES M. HARRIS III, Defendant-Appellant.

          Argued September 13, 2018

          On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-10-2986.

          Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Stephen W. Kirsch, of counsel and on the brief).

          Linda A. Shashoua, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Linda A. Shashoua, of counsel and on the brief).

          Before Judges Koblitz, Ostrer and Currier.

          OPINION

          KOBLITZ, P.J.A.D.

         After a December 2011 drug-related shooting of two men, a jury convicted defendant James Harris of two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The judge sentenced defendant to an aggregate seventy-five-year term of imprisonment under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals, arguing that a photograph obtained in response to a communications data warrant (CDW) was beyond the scope of the warrant and should have been suppressed, the guilty verdict was improperly coerced by sending the jury back to deliberate after its third declared deadlock, and a new trial should have been granted based on a newly discovered defense witness. We reverse and remand for a new trial because the incriminating photograph of a gun and ammunition was obtained in violation of the New Jersey Constitution and its admission was not harmless.

         Police found the bodies of Daquan Hines and Kevin Gould in the driver's and passenger's seats of a gold 1995 Toyota Camry. They were shot to death by the same gun.

         At trial, Donnell Ancrum, the State's principal witness, testified to the following facts. Gould called Ancrum in the morning to say he was going to be in Ancrum's part of town "to sell some weed." Ancrum told Gould he would "check out" the marijuana.

         That evening, Hines was in the driver's seat, Gould in the front passenger seat, and Ancrum in the back seat behind Gould. Ancrum saw a man approaching the car. Ancrum got out of the car to let the man into the back seat of the passenger side where he had been sitting. Ancrum began to walk around to the front of the car when he heard gunshots from inside the car. He immediately ran off to call defendant to pick him up.

         Ancrum "thought" that defendant was the gunman, but was not completely certain. Ancrum did not clarify why he would call defendant for a ride if he knew defendant had just entered the car and shot two people. The jury heard Ancrum's video-recorded statement, his third statement to police, given nine months after the murder. He told Camden County Prosecutor's Detective Charles Farrell, for the first time, that it was defendant, who came into the car and shot Hines and Gould. Defendant stayed with Ancrum for three nights after the murders.

         Cell phone records revealed sixteen calls between Ancrum and defendant that day, including one shortly before the killings, and five calls after the killings. Cell site history tracked defendant's phone before and after the killings, showing that between 6:13 p.m. and 8:42 p.m. that night, defendant was at home in Sicklerville. At 9:23 p.m., both defendant's and Ancrum's phones were in the crime scene area. By 9:26 p.m., both phones were "just outside" of the crime scene area, and then defendant's phone was back near his home around 10:30 p.m.

         A State's witness testified that he was incarcerated in the cell next to defendant between December 2011 and June 2012. This witness, who cooperated as part of his federal plea agreement, testified that defendant confessed to the murders.

         The State introduced into evidence an October 29, 2011 photograph from defendant's cell phone depicting two handguns and three boxes of ammunition. One of the guns was a Hi Point .380 caliber semi-automatic pistol, and some of the ammunition was .380-caliber TulAmmo ammunition, the same as that used in the murders.

         On appeal, defendant argues:

POINT I: THE MOTION TO SUPPRESS THE PHOTO OF GUNS AND AMMUNITION SHOULD HAVE BEEN GRANTED BECAUSE THE JUDGE ERRED WHEN FINDING THE PHOTO TO HAVE BEEN THE FRUIT OF A LAWFUL "PLAIN VIEW" SEARCH AND SEIZURE. JUST AS AN OFFICER MAY NOT PICK UP AND MOVE AN ITEM TO BRING IT INTO A BETTER "VIEW," THIS OFFICER DID NOT HAVE PROBABLE CAUSE TO OPEN THE COMPUTER FILE THAT CONTAINED THE PHOTO IN ORDER TO VIEW THAT PHOTO; ADDITIONALLY, THE DISCOVERY OF THE PHOTO WAS NOT "INADVERTENT," AS THE CASE LAW REQUIRED AT THE TIME.
POINT II: THE JUDGE'S HANDLING OF THREE SEPARATE JURY DEADLOCKS, AFTER FOUR DAYS OF DELIBERATIONS, IMPROPERLY CONVEYED TO JURORS THAT THEY WERE BEING COMPELLED TO RETURN A UNANIMOUS VERDICT, THEREBY INAPPROPRIATELY COERCING THAT VERDICT.
POINT III: THE MOTION FOR A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE SHOULD HAVE BEEN GRANTED. THE PROFFERED NEW WITNESS WOULD HAVE COMPLETELY UNDERMINED THE CREDIBILITY OF THE STATE'S PRINCIPAL WITNESS, THUS RAISING A PROBABILITY THAT THE EVIDENCE WOULD HAVE AFFECTED THE VERDICT UNDER THE STANDARD OF STATE V. CARTER.

         I. Motion to Suppress

         At the hearing on defendant's motion to suppress the photograph of the handgun and ammunition, the judge heard testimony from two witnesses: Detective Farrell, who reviewed the computer disc (CD) containing the subpoenaed information from Sprint and found the photograph; and Ryan Harger, a supervisor and record custodian for Sprint in the "subpoena compliance group." Farrell discovered the October 29, 2011 photograph when Sprint responded to the CDW covering defendant's phone use from December 1 to December 16, 2011. Sprint provided a call log for that December time range only, but, without restriction, supplied all Picture Mail records associated with ...


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