On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-03-531.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Grall.
Defendant Rickey Weaver appeals from an order denying his petition for post-conviction relief. A jury found defendant and his co-defendant, Spencer Lee Horne, guilty of first-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4e. We affirmed defendant's conviction and sentence on appeal, and the Supreme Court denied his petition for certification. State v. Weaver, No. A-2166-02 (App. Div. Dec. 15, 2003), certif. denied, 180 N.J. 455 (2004). Horne, who had not appeared for the joint trial, won a reversal of his conviction on appeal based on a "flight" instruction that authorized the jurors to infer Horne's consciousness of guilt from his absence at trial. State v. Horne, 376 N.J. Super. 201, 212, (App. Div.), certif. denied, 185 N.J. 264 (2005). After the Supreme Court denied certification in Horne, defendant filed his petition for post-conviction relief.
In his petition, defendant contended that he was deprived of effective assistance of trial and appellate counsel because neither of his attorneys objected to the jury instruction that resulted in the reversal of Horne's conviction. The trial court denied the petition on the ground that the instruction at issue in Horne clearly related to co-defendant Horne alone. The court further found that the jurors had been directed to consider the question of defendant's guilt separately from the question of Horne's guilt. Accordingly, the trial court determined that neither of defendant's attorneys erred by failing to question an instruction that could not have had any impact on the verdict against defendant. See State v. Castagna, 187 N.J. 293, 313-14 (2006) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674, 693, 698 (1984)); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the standard for measuring ineffective assistance enunciated by the Supreme Court in Strickland); see also State v. Melendez, 129 N.J. 48, 52, 60 (1992).
Defendant raises the following issues on appeal:
I. THE PCR COUNSEL WAS INEFFECTIVE BECAUSE THE PCR COUNSEL FAILED TO ARGUE AS ONE OF THE POINTS THAT THE ORIGINAL TRIAL COUNSEL WAS INEFFECTIVE FOR NOT FILING A WADE MOTION CHALLENGING THE OUT OF COURT IDENTIFICATION OF THE APPELLANT. (NOT RAISED BELOW).
II. THE TRIAL COURT COMMITTED ERROR BY NOT GRANTING THE APPELLANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.
III. THE PCR TRIAL COURT SHOULD HAVE GRANTED THE APPELLANT'S MOTION FOR POST-CONVICTION RELIEF BASED UPON THE ERRONEOUS JURY CHARGE CONSISTENT WITH THE APPELLATE COURT'S DECISION IN THE CO-DEFENDANT'S CASE.
We reject the arguments raised in Points II and III substantially for the reasons stated by the trial court.*fn1 There are additional reasons, which we discuss below.
Defendant's claims are based on a misunderstanding of the record. His trial counsel, contrary to defendant's assertion, objected to the flight charge. In response, the court gave a supplemental limiting instruction. The court explained:
Just one last thing I want to make very clear, and then you'll go in to start deliberating. I gave you what's called the flight charge as to Mr. Horne. That doesn't infer anything as to Mr. Weaver. When you're considering flight and whether or not there's consciousness of guilt as to Mr. Horne, independent of any accomplice situation, it doesn't reflect on Mr. Weaver.
There is no question that this instruction eliminated any potential for defendant to raise a successful claim of error on appeal. ...