On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Monmouth County, Indictment No. 00-06-0969.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 14, 2008
Before Judges Stern and C.L. Miniman.
Defendant Brandon Cowser appeals the October 20, 2006, denial of his petition for post-conviction relief (PCR) in connection with his June 28, 2002, conviction for the murder of his grandmother, for which he was sentenced to life in prison with thirty years of parole ineligibility, and first-degree robbery of his grandmother, for which he was sentenced to a concurrent term of twenty years.*fn1 His conviction was affirmed by us and his petition for certification was denied. State v. Cowser, No. A-281-02 (App. Div. Dec. 1, 2004), certif. denied, 182 N.J. 630 (2005).
The operative facts were summarized in our affirmance of his convictions as follows:
Defendant and co-defendant, Nathanial Burkard, testified that the other was responsible for the homicide. Defendant, his grandmother and Burkard were riding in the grandmother's car when the attack upon defendant's grandmother began. According to defendant, Burkard choked his grandmother to "finish what [defendant] started" and to prevent them from getting "in trouble," after defendant "reached over and grabbed her neck" during an argument.
Burkard, who had entered a negotiated guilty plea to aggravated manslaughter, appeared as a rebuttal witness for the State. He testified that defendant had talked for some time about killing his grandmother because "she was worth money" and "he could get thousands of dollars initially and over time." According to Burkard, defendant was driving his grandmother's car when defendant "parked the car," "leaned over" and "strangled his grandmother." Defendant thereafter dragged her out of the car and "kneel[ed] on her throat" before the two men "dragg[ed] her to a creek where defendant held her under water for about five minutes. Defendant then went home, obtained a shovel, and with the help of Burkard, buried the victim in a wooded area. The morning after the murder, defendant cashed a $3,300 forged check on his grandmother's account.
Michael Higgins, a friend of defendant, testified that defendant came to his house with "his grandmother's car and checkbook" and "said he was going to the bank and cash a check that his grandmother had given him." He subsequently returned with $3,300 that Higgins watched defendant count. Defendant then drove his grandmother's car to the Monmouth Mall where he gave Higgins $150 "to buy things."
Several days later, Higgins asked defendant "if he killed his grandmother." Defendant answered "yes," and "said he didn't want to tell [H]iggins anything because the more [he] knew the more trouble [he] would get into." However, defendant did say "I choked somebody until they stopped shaking."
Defendant gave a detailed written, and later videotaped, statement in which he admitted that he "squeeze[ed]" and choked his grandmother, "kneeled on her neck" and held her head under water before he and Burkard "dragged" her to a secluded area in the woods and buried her. Defendant also admitted he obtained the shovel to bury the victim, took the victim's checkbook, wrote himself a $3,300 check and cashed it the next morning.
[Id. at 2-3 (footnote omitted).]
Defendant raised the following issues on direct appeal:
POINT I -- THE DEFENDANT'S STATEMENTS MADE TO DETECTIVE SEITZ SHOULD HAVE BEEN SUPPRESSED BECAUSE THE LENGTH OF THE INTERROGATION CONSTITUTED AN "UNFAIR MEANS."
POINT II -- NATHANIEL BURKARD'S TESTIMONY THAT THE DEFENDANT "HYPOTHETICALLY" DISCUSSED PLANS TO KILL HIS GRANDMOTHER PRIOR TO NOVEMBER 23, 1999 CONSTITUTED INADMISSIBLE OTHER CRIMES EVIDENCE. (NOT RAISED BELOW)
(A) THE DEFENDANT'S "HYPOTHETICAL" STATEMENTS FAILED TO SATISFY THE "CLEAR AND CONVINCING" STANDARD UNDER STATE V. COFIELD.
(B) THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY AS TO THE PERMISSIBLE USE OF MR. BURKARD'S TESTIMONY IN THE ...