July 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THOMAS W. MILLS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 95-10-3107.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 4, 2008
Before Judges Stern and A. A. Rodríguez.
Defendant Thomas W. Mills appeals from the denial of his petition for post-conviction relief (PCR). We affirm. Following a jury trial, defendant was convicted of first- degree aggravated manslaughter of Isaac Buie, N.J.S.A. 2C:11-4a as a lesser-included offense of murder; and third-degree unlawful possession of a weapon (a handgun), N.J.S.A. 2C:39-5b.
The trial judge merged the convictions and imposed a forty-year term with a twenty-year parole disqualifier. We affirmed on direct appeal. No. A-980-96T4 (App. Div. March 2, 1998), certif. denied, 156 N.J. 382 (1998).
Defendant filed a first PCR petition pro se. Counsel filed a more formal brief on behalf of defendant, challenging the admission of testimony from eyewitness Pamela Henderson and ballistics expert Gary Prystauk. Following oral argument, the trial judge denied the petition.
The facts are set forth in our opinion of direct appeal. Briefly, we summarize the following events. In the early morning of August 15, 1995, Henderson and her friend Buie, were looking for ways to get money in order to buy more drugs. They saw a parked van, which they knew belonged to defendant.
According to Henderson, defendant was in the van. Buie told Henderson that defendant appeared to have some money. Buie reached into defendant's van and retrieved a toolbox. When defendant asked for his property back, Buie told him that it would cost $5. Defendant went to his van and retrieved a .25 caliber handgun. Defendant displayed the weapon to Buie and again asked for his property. Buie tried to knock the gun out of defendant's hand with the toolbox. The gun discharged. Buie started to flee. Defendant kept firing the gun at Buie, who collapsed and died.
In addition to Henderson, the incident was observed by a Ellen Fay Black, who was seated in the front passenger seat of her girlfriend's automobile. There was conflicting testimony by the experts as to the distance between Buie and defendant at the time the fatal shot was fired. The State's experts were of the view that the distance between the two men was up to ten inches. The defense expert estimated the distance was between two and three inches.
Defendant did not testify at trial, but a statement that he gave to the police was admitted into evidence. In that statement, defendant indicated that he thought Buie had a knife or a gun on his person.
On appeal, defendant contends:
THE COURT BELOW ERRED IN DENYING THE [PCR] APPLICATION AS THE DEFENDANT'S RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS WERE VIOLATED BY THE STATE'S USE OF A WITNESS WITHOUT PRIOR NOTICE TO THE DEFENSE; TRIAL COUNSEL WAS INEFFECTIVE MANDATING A NEW TRIAL OR, AT THE VERY LEAST, A HEARING; U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10.
THE PCR COURT ERRED IN DENYING THE APPLICATION DUE TO THE STATE'S CALLING OF AN UNDISCLOSED EXPERT WITNESS DURING TRIAL (WITHOUT SUPPLYING AN EXPERT'S REPORT AND NOTICE TO COUNSEL) IN VIOLATION OF THE UNITED STATES AND NEW JERSEY CONSTITUTIONS; TRIAL COUNSEL WAS INEFFECTIVE MANDATING A NEW TRIAL OR, AT THE VERY LEAST, A HEARING; U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. (1947), ART. I, PAR. 10.
THE DEFENDANT'S EXTENDED TERM SENTENCE IS ILLEGAL AND VIOLATIVE OF DEFENDANT'S DUE PROCESS AND SIXTH AMENDMENT JURY TRIAL RIGHTS; NEW JERSEY STATE CONSTITUTIONAL RIGHT TO NOTICE AND INDICTMENT (N.J. CONST. ART. I, ¶ 8); APPRENDI, BLAKELY, NATALE AND PIERCE; THE DEFENDANT MUST BE RE-SENTENCED TO TIME SERVED.
THE UNITED STATES SUPREME COURT DECISION IN APPRENDI/BLAKELY SHOULD BE APPLIED RETROACTIVELY TO STATE CASES ON COLLATERAL REVIEW.
We affirm, determining that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We merely note that according to the judge, Henderson's name and the substance of her testimony were sent to defense counsel prior to trial. Prystauk was a rebuttal witness. He was called to testify to rebut expert testimony offered by defense expert.
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