November 9, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTWON BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 90-11-5151.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2007
Before Judges Lintner and Sabatino.
Defendant, Antwon Brown, who was convicted by a jury in 1991 of murdering his pregnant aunt and her boyfriend, appeals an order of the Law Division dated November 29, 2000. The order denied defendant's petition for post-conviction relief ("PCR") and his request for the appointment of a forensic expert.
We canvassed the underlying proofs, which clearly support defendant's guilt of this double murder and other related offenses, in our unpublished 1994 opinion sustaining the convictions and defendant's resulting consecutive life sentences on direct appeal, State v. Brown, No. A-2327-91, (App. Div. June 23, 1994), and we need not repeat the facts at length here. It will suffice to say that the State's proofs showed that on July 26, 1990, defendant shot and killed his aunt, Odis Brown (who was then eight months pregnant) and her live-in boyfriend, Clifton McKinney. Defendant shot the victims while they were in bed together. Defendant had been living in their residence for about four months. The State's theory was that defendant was motivated in part to shoot Brown and McKinney because he might have had to leave the house after his aunt gave birth. One of the State's key witnesses at trial was a fifteen-year-old boy, who had observed defendant enter the house with a gun, heard gunshots, and then saw him leave the house. Defendant then threatened to harm the boy and his family if he reported the crimes.
After defendant's petition for certification to the Supreme Court on his direct appeal was denied, he filed a PCR application. As part of his application, defendant requested that the court appoint an independent ballistics expert, hoping that such an expert might support his present claim that he had shot the victims with justification, supposedly in an attempt to protect his aunt from being attacked with a gun being held by her boyfriend.
Defendant's PCR application was referred to the same judge who had presided over his eleven-day jury trial in 1991. After considering defendant's contentions, the judge issued a detailed oral ruling on September 29, 2000, denying the requests for relief in their entirety. The judge concluded that several of defendant's claims were procedurally barred under R. 3:22-4 and R. 3:22-5 because they were or could have been raised on his direct appeal, and that all of his claims lacked substantive merit. The judge also was satisfied that there was no need to conduct an evidentiary hearing on those issues. At the same time, the judge rejected defendant's request for the appointment of a forensic expert.
In this ensuing appeal, defendant has presented the following arguments:
THE COURT ERRED IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
THE COURT ABUSED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF BECAUSE THE DEFENDANT ESTABLISHED BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE THAT HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10, OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.
Having considered these arguments and the record as a whole, we affirm the Law Division's order denying relief, substantially for the reasons detailed in Judge Benjamin Cohen's well-reasoned oral decision. We add only a few comments.
Defendant's PCR arguments are permeated with a contention that he was deprived of the effective assistance of counsel at his 1991 trial, and thereafter on his direct appeal, in violation of the Sixth Amendment and related case law. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland standards for ineffectiveness under New Jersey law). However, defendant specifically raised on direct appeal a claim that his trial counsel was ineffective. We rejected that claim, determining from our review of the voluminous record that trial counsel "represented defendant with skill and diligence, making reasonable tactical and strategic judgments in which defendant evidently concurred." Brown, supra, slip op. at 8. Defendant cannot relitigate that finding now. R. 3:22-5.
Although defendant's PCR application alleges miscellaneous failures by his trial counsel that he did not specifically highlight on direct appeal, those alleged failures surely could have been incorporated in his Strickland arguments when his case was originally before us in 1994. The claims are therefore barred under R. 3:22-4. Moreover, we share the trial judge's view that the claims have no merit.
We are further satisfied that defendant's counsel on his direct appeal competently represented him, filing a thirty-one page brief on defendant's behalf raising a variety of evidentiary, procedural, and substantive issues. His counsel thereafter competently reasserted those arguments in a timely petition for certification.
We also are satisfied that the judge correctly rejected defendant's request for the appointment of a ballistics expert. The request is based upon a speculative theory that is contrary to defendant's position at trial that he had not fired the gun. His present theory of justification also does not mesh with the teenage witness's testimony that defendant entered the house carrying a gun and that, upon emerging from the house, threatened the teenager to not divulge the shootings.
Lastly, we note that no evidentiary hearing on the PCR application was warranted, given the procedural and substantive flaws manifest in defendant's contentions. We agree with the trial judge that the contentions did not raise a sufficient prima facie claim to require live testimony and credibility findings. State v. Preciose, 129 N.J. 451, 459 (1992).
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