On appeal from Superior Court of New Jersey, Law Division, Essex County, 91-2-823-I.
Before Judges Keefe, Steinberg and Weissbard.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
An Essex County Grand Jury returned Indictment No. 91-2-823, charging defendant with the following offenses: first-degree murder of Pedro Flores, N.J.S.A. 2C:11-3(a)(1)(2) (count two); first-degree felony murder of Pedro Flores, N.J.S.A. 2C:11-3(a) (count three); first-degree kidnapping of Pedro Flores, N.J.S.A. 2C:13-1(b)(1) (count four); first-degree robbery of Pedro Flores, N.J.S.A. 2C:15-1 (count five); second-degree attempted murder of M. T., N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count six); first-degree aggravated sexual assault on M.T., N.J.S.A. 2C:14-2(a) (count seven); first-degree kidnapping of M.T., N.J.S.A. 2C:13-1(b)(1) (count eight); first-degree robbery of M.T., N.J.S.A. 2C:15-1 (count nine); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count ten), and second-degree possession of a certain weapon, a handgun, with a purpose to use it unlawfully against the person of another, N.J.S.A. 2C:39-4(a) (count eleven).*fn1 The Grand Jury also named Rodney Lance and Eugene Pickney as co- defendants.
The State's pretrial motion to sever the charges so that the three defendants could stand trial separately was granted. A jury found defendant guilty on all counts. The trial judge sentenced defendant to life imprisonment, with a thirty-year period of parole ineligibility on count two, a consecutive term of twenty years with a ten-year period of parole ineligibility on count four, the kidnapping of Pedro Flores, and an additional consecutive twenty- year term of imprisonment with ten years of parole ineligibility on count seven, the aggravated sexual assault of M.T. All other sentences were imposed to run concurrently. In addition, the felony murder conviction was merged into the conviction for murder, and the conviction for possession of a weapon for an unlawful purpose was merged into counts four, five, seven, eight, and nine. The appropriate monetary penalties were also imposed.
In an unpublished opinion, with the exception of the conviction on count two for purposeful or knowing murder, we affirmed the judgment of conviction. Because of defects in the charge regarding accomplice liability, we reversed the conviction on that count, but further provided that at the election of the State, the trial judge could unmerge the conviction on count three, the felony murder conviction, and sentence defendant on that conviction. State v. Cann, Docket No. A-3878-92, decided March 6, 1996. The Supreme Court denied defendant's petition for certification. State v. Cann, 145 N.J. 375 (1996).
On remand, the State elected not to retry the purposeful or knowing murder count. Accordingly, the trial judge unmerged the felony murder conviction and sentenced defendant on that count to life imprisonment with thirty years to be served without parole. The judge then reimposed the same sentences previously imposed. Accordingly, defendant's aggregate sentence was life in prison, plus twenty years, with fifty years of parole ineligibility.
The defendant again appealed to this court. In an unpublished opinion, we affirmed the conviction. State v. Cann, Docket No. 4669-95, decided November 10, 1997. Again, the Supreme Court denied defendant's petition for certification. State v. Cann, 153 N.J. 48 (1998). Defendant then filed a petition for post- conviction relief. Although the petition was filed with the Essex County Criminal Clerk on April 6, 1998, defendant provided a letter of transmittal dated March 27, 1998. A hearing on defendant's petition was conducted on June 10, 1999. On June 11, 1999, the judge entered an order denying defendant's application for an evidentiary hearing and also denying the application. The judge also issued a written opinion. Defendant appeals. We affirm.
The facts relevant to the disposition of this appeal, as produced by the State at trial, are the following: M.T. lived with her husband and children in Bloomfield. On September 27, 1986, she rode with a friend to Newark in order to purchase drugs. She had just finished a drug detoxification program. She left the car looking for a drug seller. Her friend saw police activity in the area and drove away, leaving M.T. on the street.
Shortly thereafter, M.T. met Pedro Flores. While they were walking together, they were accosted by defendant, along with Pickney and Lance. They demanded money and drugs. They forced M.T. and Flores into a car at gunpoint, and grabbed M.T.'s pocketbook. The two were then taken to a backyard and, at gun point, the three assailants took turns raping M.T., both vaginally and orally. Thereafter, the victims were forcefully taken to an empty lot where all three men again sexually assaulted M.T. From there, the abductors took Flores and M.T. around the corner to a playground, where they again sexually assault M.T. In addition, they forced Flores to have sex with her. Lance then placed a jacket on Flores' head and shot and killed him. Lance also shot M.T., who had placed her hands to the back of her head to protect herself. When the gun went off, the bullet went through M.T.'s finger and lodged in her skull. The three assailants left M.T. unconscious, believing she was dead.
In his appendix filed in conjunction of this appeal, defendant has only supplied excerpts from the brief and appendix he filed in support of his initial petition. One of the excerpts is the table of contents which sets forth the following contentions: (1) "The trial court erred in admitting prejudicial testimony and [an] inadmissible weapon into evidence and denied appellant a fair trial" and (2) "He was denied the effective assistance of counsel." At the hearing, defense counsel clarified the contentions raised by defendant in his petition. Specifically, he contended that the evidence regarding an earlier incident at Georgia King Village should not have been admitted at trial. He also claimed that evidence that an officer saw Lance the next morning with a gun, as well as the gun itself, should not have been admitted at the trial since it was not presented to the Grand Jury. He also contended that trial counsel was ineffective for the following reasons: (1) failing to file a pretrial motion to suppress any testimony of the Georgia King Village incident; (2) failing to file a pretrial motion to suppress any testimony regarding the Lance gun arrest, and drug use by Lance and Pickney; (3) failed to move to dismiss the indictment by virtue of the failure of the prosecutor to submit to the Grand Jury the fact that Tyronne Kornegay, who was not charged, had previously admitted to participating in the incident, which was confirmed by Linda Moore; (4) failing to move to dismiss the indictment because the State failed to submit to the Grand Jury that fact that M.T. had identified three other individuals rather than defendant; (5) failing to call Detective Cocchi to testify that M.T. had identified other individuals from a photographic array; (5) failing to request "a DNA analysis of the semen stains or any of the other stains that were taken from the panties and other garments that were retrieved in the course of the investigation of the case, as well as that which was retained in the rape kit, as it might have provided a more precise measure to provide the attribution of the stain as to a person that would exculpate the defendant"; (6) failing to request a DNA analysis of Flores since M.T. had testified that the perpetrators had forced him to have intercourse with her;*fn2 (7) failing to appropriately cross-examine M.T. on the identification issue, specifically that she had made a comment during a recess that she then recognized defendant; (8) failing to call Lance as a witness; (9) failing to present Charles Alexander as an alibi witness.
In addition, defendant asserted that appellate counsel was ineffective in failing to adequately challenge the accomplice liability charge in the second direct appeal.
In his written opinion, the judge concluded that many of the claims in the petition for post-conviction relief should have been raised on direct appeal and were procedurally barred by R. 3:23-4 (a ground for relief raised in a petition for post-conviction relief is procedurally barred if it could reasonably have been raised in a prior proceeding). The judge concluded that there was no fundamental injustice sufficient to relax the procedural bar. In addition, he concluded that some of the issues raised on appeal have previously been decided by this court and thus were barred by R. 3:22-5 (a prior adjudication upon the merits of any ground for relief is conclusive). The judge also determined that the petition was time-barred because it was not filed within five years of defendant's conviction. R. 3:22-12 (a petition for post-conviction relief must be filed within five years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay was due to ...