September 13, 2018
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).
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).
Judges Koblitz, Ostrer and Currier.
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.
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.
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.
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
"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.
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
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.
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.
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
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.
Motion to Suppress
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 ...